Secretary to the Department of Justice and Community Safety v ST
[2019] VSC 722
•29 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0279
| IN THE MATTER of the Serious Offenders Act 2018 | |
| - and - | |
| IN THE MATTER of an application for a supervision order | |
| The Secretary to the Department of Justice and Community Safety | Applicant |
| v | |
| ST | Respondent |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 March 2019 |
DATE OF JUDGMENT: | 29 March 2019 |
DATE OF REASONS | 8 November 2019 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v ST |
MEDIUM NEUTRAL CITATION: | [2019] VSC 722 |
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PUBLIC LAW - Application for supervision order – Duration of five years sought - Respondent on interim supervision order made near the expiration of long sentence for violent offending – Anti-social personality disorder and schizophrenia – Evidence of assessor that respondent posed a high risk of violent recidivism – No challenge that order should be made with the conditions sought – Intensive treatment condition – Dispute as to duration of order – ARMv Secretary to Department of Justice (2008) 29 VR 472 considered – Five year supervision order made – Serious Offenders Act 2018 ss 1, 13, 14, 27, 32.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Paul Holdenson QC | Victorian Government Solicitor’s Office |
| For the Respondent | Mr Raphael de Vietri | Victoria Legal Aid |
HIS HONOUR:
Introduction
By notice dated 24 October 2018, the Secretary to the Department of Justice and Community Safety (‘the applicant’ or ‘the Secretary’) applied for a supervision order (‘SO’) in respect of the respondent under section 13(1) of the Serious Offenders Act 2018 (‘the Act’).
On 11 December 2018, I heard an application for an interim supervision order (‘ISO’) as it was unlikely that the application for a SO would be heard and determined before 28 December 2018, the expiry of the respondent’s sentence. I granted the application. The ISO took effect from 28 December 2018.[1]
[1]Pursuant to section 53(1) of the Act.
On 29 March 2019, the SO application came on for hearing before me. The application for the making of a SO was not opposed by the respondent, save for the fact that the appropriateness of the duration of the order sought by the Secretary, namely five years, was contested. On that day, I heard some evidence to which I will later turn. I made the supervision order specifying the period of five years. I said at that time that I would publish my reasons at a future time. These are those reasons.
Background
The respondent is a 45 year old man of Vietnamese heritage. At the age of eight he moved to Australia with his family. He struggled with school and has little history of employment or intimate relationships. The respondent was imprisoned by the age of 25 years.
The respondent was a heavy drug and alcohol user from his teenage years up until his incarceration for the index offending. He was involved in trafficking heroin to gain an income and apparent affluence which he then used to attract short term partners. The respondent had a brief relationship with a woman named JS[2] with whom he remained infatuated for years after their break up, adopting her surname.
[2]Anonymised to protect identity of JS.
The respondent suffered from depression and anxiety from an early age, for which he received psychiatric treatment. He was also observed to have strong schizoid personality traits, although he was not found to be psychotic at the time of the index offending.
The index offending
Beginning on 17 February 1999, and in the context of his ongoing heroin trafficking and use, the respondent engaged in a 6 day spree of violent offending, which involved incidents of road rage where he threatened and shot at strangers, an associate and police officers. The respondent was sentenced by Teague J on 26 June 2000 to 20 years’ imprisonment with a non-parole period of 15 years for offences of attempted murder (three counts), trafficking heroin, recklessly causing serious injury, reckless conduct endangering life (two counts), criminal damage (three counts), common law assault (two counts) and theft of a motor vehicle.
The circumstances of these offences are summarised in his Honour’s sentencing remarks and will be reiterated in short here.[3]
[3]R v ST [2000] VSC 276.
On 17 February 1999, the respondent was driving his vehicle in Brighton when he became enraged with another driver. When stopped at a red light, he alighted from his vehicle and smashed the rear window of the other driver’s vehicle using an extendable baton. He then confronted the driver whilst holding the baton but did not take any further action.
Two days later, on 19 February 1999, the respondent used a screwdriver to steal the number plates from a vehicle parked in South Yarra. When the owner caught the respondent in the act and asked him what he was doing, the respondent pointed the screwdriver at him and abused him before leaving with the number plates.
From late 1997 until early 1999, the respondent was engaged in heroin trafficking with an associate, PN.[4] Two days after the second incident, on 21 February 1999, the respondent drove to Yarraville to find PN. He located him in a vehicle with two friends. The respondent fired several shots into the vehicle at close range aiming at PN and striking him and a passenger. PN received injuries to the chest, abdomen, arm and leg and his passenger received injuries to the leg and foot.
[4]Anonymised to protect the identity of PN.
The next day, 22 February 1999, the respondent was again enraged with another road user whilst driving through Coburg. When the two vehicles were stopped at a red light, the respondent pointed a handgun at the other driver, firing one shot which narrowly missed the driver.
On 23 February 1999, the respondent engaged in another incident of road rage in Hawthorn. On this occasion, the respondent’s vehicle and the victim’s vehicle were stopped at a red light. The respondent pointed a handgun at the victim and fired six shots. All but one of the shots hit the victim’s vehicle, the other hitting the victim in the stomach. The victim verbally abused the respondent and in response the respondent fired further shots from another handgun which hit the victim’s car as he drove off.
Later that day, police were on the lookout for the respondent’s car. Whilst driving in Rosanna, police intercepted the respondent’s vehicle by using two police vehicles to force the respondent’s vehicle to stop against a curb. The respondent got out of his vehicle holding a handgun. The respondent then fired a shot at one of the police officers who had alighted from his vehicle. The bullet hit the police officer in the chest. The respondent continued to fire shots at the wounded officer before firing at another police officer. Both officers returned fire. The respondent was shot by police in the arm and loin area causing him to drop his weapon, leading to his arrest. Police later found other handguns and ammunition in the respondent’s car.
Progress in prison and psychiatric history
The respondent exhibited disruptive behaviour for the first 15 years of his incarceration. He was involved in some incidents of violence involving other prisoners, and engaged in inappropriate and intimidating behaviour towards staff.
He received treatment for alcohol and drug abuse, but at times, he showed limited insight and awareness of the need to modify his behaviour. Furthermore, on occasions he informed people of the likelihood that he would return to trafficking drugs upon his release.
In August 2017, a diagnosis of likely schizophrenia was reached by a psychiatrist who reviewed the respondent. Differing diagnoses were reached subsequently, but a psychiatrist who assessed him in Ravenhall Correctional Centre in February 2018 considered that he suffered from schizophrenia which had been untreated for many years. That diagnosis was later confirmed by Dr Kevin Ong, in a report provided to the Court in this matter.
The law
Section 1 of the Act reads, 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 and supervision; and
(b)secondly, to facilitate the treatment and rehabilitation of those offenders
…
The respondent was an eligible offender for a SO application under section 8 the Act by virtue of the fact that he was subject to an ISO.[5]
[5]Section 8(3).
The application for a SO was filed under section 13 of the Act. Section 14 of the Act sets out the requirements before a SO can be made. It relevantly provides:
(1)On an application under section 13, the court may make a supervision order in respect of an eligible offender, if and only if, the court is satisfied that -
…
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing…a serious violence offence…if a supervision order is not made and the offender is in the community.
(2)In determining whether an offender poses or will pose an unacceptable risk under subsection (1) –
(a) the court must have regard to -
(i)subject to 273, any assessment report or progress report filed in relation to the application, whether by the Secretary or the offender; and
(ii)any other report filed, tendered or made, or evidence given, in relation to the application; and
(iii) any other matter the court considers appropriate; and
(b) the court must not have regard to -
(i) the means of managing the risk; or
(ii) the likely impact of a supervision order on the offender.
(3)For the purposes of subsection (1), the court must be satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk.
(4)The court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(5)The Secretary has the burden of proving that an offender poses or will pose an unacceptable risk under subsection (1).
(6) If the court is satisfied as required by subsection (1), the court may -
(a) make a supervision order; or
(b) make no order.
…
‘Serious violence offence’ is defined in the Act as an offence referred to in Schedule 2 of the Act. Attempted murder and recklessly causing serious injury are serious violence offences.
Unacceptable risk
The term ‘unacceptable risk’ is not defined in the Act, but in the context of the now repealed Serious Sex Offenders (Detention and Supervision) Act 2004, the meaning of the term was considered by the Court of Appeal in Nigro v Secretary to the Department of Justice (‘Nigro’).[6]
[6](2013) 41 VR 359 (‘Nigro’).
In that case, the Court stated that ‘the concept of unacceptable risk is a flexible one which is “calibrated to the nature and degree of the risk so that it can be adapted to the particular case”’.[7]
[7]Ibid [165] (citations omitted).
As the Court stated:
The legislature has deliberately selected a threshold test that does not specify a particular degree of risk. Rather, the test requires an assessment of the risk and a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that may result having regard to the manner in which the offender had previously committed such an offence. It is the combination of these factors that will determine whether the risk of occurrence is of a sufficient order to make the risk unacceptable. [8]
[8]Ibid [117].
The Court held:
Whether a risk is unacceptable depends upon the degree of likelihood of offending[9] and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstances, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence.[10]
[9]Section 14(4) of the Act dictates that the risk may be unacceptable even if the likelihood is less than more likely than not.
[10]Nigro (n 6) [6].
The Court further stated:
It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[11]
[11]Ibid [130].
The Court in Nigro made it clear that the test of unacceptable risk:
should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection.[12]
[12]Ibid [5].
Conditions
Division 3 of the Act sets out the law relating to the conditions of a SO. Section 27 explains the purposes of conditions of a SO and reads:
(1)The primary purpose of the conditions of a supervision order is to reduce the risk of the offender re-offending by committing…a serious violence offence…or an offence referred to in Schedule 3.
…
(3)In order to reduce the risk of the offender re-offending, the conditions may-
(a) promote the rehabilitation and treatment of the offender; and
(b)address types of behaviour that may increase the risk of the offender-
(i)committing…a serious violence offence…or an offence referred to in Schedule 3; or
(ii)engaging in any behaviour or conduct that threatens the safety of any person (including the offender).
(4)The court must ensure that any conditions of a supervision order (other than the core conditions) -
(a)constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions; and
(b)are reasonably related to the gravity of the risk of the offender re-offending.
Intensive treatment and supervision condition
Pursuant to section 32 of the Act, the Court may impose a condition on a SO requiring an offender to reside at a residential treatment facility if the Court is satisfied of the following:
(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.
Subsection (2) provides:
Despite section 14(2)(b), in determining whether to impose an intensive treatment 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.
Before imposing such a condition, subsection (3) requires the court to consider
(a) a treatment and supervision plan filed by the Secretary; and
(b) any other matter the court considers appropriate.
Subsection (4) outlines the conditions the Court must impose on the SO if an intensive treatment and supervision condition is made under ss (1).
Duration of the order
Section 19(1) of the Act provides that the period of a SO is a period not exceeding 15 years specified by the Court. In this case, the applicant sought a SO for a period of five years.
In ARM v Secretary to the Department of Justice[13], the Court of Appeal considered the making of an extended supervision order under the previous Serious Sex Offenders Monitoring Act 2005. In respect of the provision of that Act dictating a 15 year maximum period for an order, the Court stated:
It is implicit in s 14, and both sides accepted, that if the court is not satisfied to a high degree of probability that the offender will remain likely to commit a relevant offence for the whole 15 year period referred to in s 14, the period of the order should be set at such lesser period as for which the court is satisfied to a high degree of probability that the offender will be likely to commit a relevant offence unless subjected to the program.[14]
[13](2008) 29 VR 472 (‘ARM’).
[14]Ibid [13].
The evidence
For the applicant
The application was supported by evidentiary materials set out by Mr Holdenson QC at the hearing of the application on 29 March 2019. These included two assessment reports by Professor James Ogloff, a psychiatric report of Dr Kevin Ong, an affidavit affirmed by Ms Simone Shaw which describes the Rivergum facility and a treatment and supervision plan. Mr Holdenson QC also relied upon the sentencing remarks of Justice Teague.[15]
[15]R v ST (n 3).
Professor Ogloff
Professor James Ogloff, a clinical and forensic psychologist, provided two reports to the Court. These were an Assessment Report pursuant to ss 267 and 269 of the Act, dated 26 September 2018 and an Addendum Report dated 10 December 2018. Professor Ogloff gave sworn evidence in the hearing before me on 29 March 2019.
Reports of Professor Ogloff
Professor Ogloff, an eminent psychologist with a wealth of experience in the assessment of risk of violent reoffending, interviewed the respondent at Ravenhall Correctional Centre on 2 August 2018. In preparing his first report, he had access and regard to a vast array of material relating to the respondent, including his Corrections files.
The Assessment Report contained a very full coverage and analysis of all relevant aspects of the life and background of the respondent, including his personal background, his offending history, an analysis of the index offending, his psychiatric and drug-use history, and his progress since the time of imprisonment including incidents in which he has been involved and treatment he has received. In the circumstances, it is not necessary to summarise those matters here.
Professor Ogloff used two structured risk assessment instruments to assist with a determination of the respondent’s likelihood of future violent offending. These were the Historical, Clinical, Risk – 20, version 3 (HCR-20) and the Psychopathy Checklist, Revised (Second Edition) (‘the PCL-R’). Both measures have been widely validated, including for use in Australia. They can provide an indication of the category of risk of violent reoffending in which an individual is likely to fall. Professor Ogloff noted that there is clear evidence that such structured risk assessment measures are far more valid and reliable in predicting risk that reliance on clinical judgment alone. He stated:
The best practise approach to violent offender risk assessment is to employ the validated risk measures and then consider the applicability of the results for the individual case in light of the general violent offender literature and clinical experience.[16]
[16]Assessment Report [73].
In summarising the results of the respondent on the HCR-20, Professor Ogloff noted:
Taken together, [the respondent’s] scores on all three subscales of the HCR-20 are high. As such, his overall profile on the HCR-20 is consistent with offenders who present a high risk of re-offending violently.[17]
[17]Ibid [81].
In respect of the PCL-R, the respondent’s scores fell in the moderate category, indicating that he did not fully demonstrate the features associated with psychopathy. None the less, Professor Ogloff considered the respondent’s risk of future violence to be high. He stated:
As noted, [the respondent] has elevations on all the subscales of the HCR-20. He demonstrates a history of problems related to violence, and his presentation over the past six months shows that he continues to possess most of the dynamic risk factors on the HCR-20 associated with a risk for violence. Finally, given that his sentence is ending, he would be left to his own devices to manage the relevant risk factors going forward. Unfortunately, given his history and ongoing presentation, he is likely to experience a high degree of problems related to violent offending when back in the community.
…
In addition, there is a very real risk that [the respondent] would return to taking drugs and, perhaps, selling drugs in a desperate attempt to gain status and wealth. I have concern, as well, with his lingering infatuation with JS, which has lasted for more than 20 years. It is very likely that he would try to contact her when he is released from prison.
Taken together, it is my opinion that [the respondent] presents a high risk of engaging in future violence and violence offending. While his behaviour has been contained over many years, he has not been exposed to the risk factors that were associated with his earlier violent offending.[18]
[18]Ibid [84]-[86].
Professor Ogloff went on to express the opinion that the respondent presented a high risk of committing a serious violent offence, including causing serious injury and murder. He set out the factors which, to his mind, contributed to that risk. He described the past offending of the respondent as ‘atypical and extreme’, and noted it had seemingly been a culmination of a pattern of substance abuse and disregard for the law, leading to the development of a persona of invincibility, low frustration tolerance, and disregard for others. Future offending, were it to occur:
would likely follow a pattern of a return to substance misuse and mental illness. This would be exacerbated if [the respondent] returned to a life of crime and disregard for the law, including drug trafficking and rule violation. The risk would be exacerbated should [the respondent] obtain weapons, namely guns.[19]
[19]Ibid [101].
Specifically addressing the matter in section 269(2) of the Act, Professor Ogloff stated:
It is my opinion, based on my examination of [the respondent] and the administration and interpretation of the risk assessment measure I have undertaken, that he would pose a high risk of committing another serious violent offence should he be released into the community and not made subject to a supervision or detention order.[20]
[20]Ibid [106].
In his Addendum Report, Professor Ogloff addressed three additional documents he had by then received, namely, the affidavit of Simone Shaw describing in detail the services offered by the Rivergum Residential Treatment Centre (‘Rivergum’), the Treatment and Supervision Plan proposing that the respondent reside at Rivergum, and the psychiatric report of Dr Ong which indicated the respondent posed a high risk of future violence, and was suffering from antisocial personality disorder, poly-substance use disorder, and chronic schizophrenia.
Being concerned that the mental illness of the respondent would preclude him from admission to Rivergum, Professor Ogloff communicated those concerns to the Post Sentence Branch. In response, the Post Sentence Branch provided additional information about the treatment which could be provided to the respondent in Rivergum.
Professor Ogloff emphasised the challenges presented by the respondent’s illness. He stated:
While it would not be realistic that referral to GP and community mental health services alone, which are voluntary, would adequately address [the respondent’s] significant and complex psychiatric illness and presentation, the enhanced plan provided by the Post Sentence Branch will at least provide [the respondent] with an excellent option to assist him to get the care that he requires.
Moreover, the offence-specific treatment highlighted in Ms Shaw’s affidavit will also suit [the respondent’s] needs once his psychiatric illness is stabilised.[21]
Evidence of Professor Ogloff
[21]Ibid [18]-[19].
As indicated already, Professor Ogloff gave sworn evidence before me on 29 March 2019.
He confirmed the accuracy of the factual matters set out in his reports, and that the opinions expressed by him in the reports were still his opinions.
Professor Ogloff indicated that he had read material relating to the respondent’s residence at Rivergum since the expiration of his sentence. He said that he considered Rivergum to be the correct place for the respondent to reside at at this time.
Professor Ogloff agreed with the contention expressed in the Treatment and Supervision Plan that the respondent would require a highly structured, cautious transition from prison to the community. He expressed his concern that without extreme caution, the community would be at risk were the respondent to be released without such a cautious transition.
When asked to express an opinion as to the magnitude of the risk which would be posed by the respondent in five years’ time, Professor Ogloff stated:
It’s incredibly difficult and perhaps impossible to determine with a degree of certainty what one’s level of risk will be in the future, but given a few factors that I think need to be articulated my concern would be that it would be most unlikely that the level of risk would reduce from the high level where it is at present to a low or even moderate level within that period of time, five years.[22]
[22]Transcript 88.
He then proceeded to set out the reasons for the above opinion[23] which he then summarised as follows:
So we have first, as I mentioned, this long history with very extreme behaviour, tempered obviously by long (sic) period of incarceration, coupled with a very high level of risk in the comprehensive assessment. And then, third, the presence of his mental illness and lack of insight into both the nature of the illness or the fact that he may have an illness and, more importantly perhaps and more relevant, a lack of awareness and insight still into the drivers of his offending and its heinous nature.
So given the question Mr Holdenson’s posed, those three areas of concern lead me to believe that, given the complexity, even with an extended period, he would retain – or consistently present as an increased level of risk. As I mentioned, I can’t be, you know, definitive into the future, but certainly for the foreseeable future that’s my opinion.[24]
[23]Transcript 88-9.
[24]Transcript 90.
In cross-examination by Mr de Vietri, Professor Ogloff conceded that he did not see the respondent as being untreatable, and conceded uncertainty as to the risk that the respondent would pose in the future
In re-examination, however, he reiterated the opinions earlier expressed. In particular, he expressed the opinion that it was unlikely, although not impossible, that there would be much reduction in risk over the next five years.
Dr Kevin Ong
I have touched briefly on the content of the report of Dr Ong. Further elaboration is not necessary at this time.
Affidavit of Simone Shaw
I have touched briefly on the content of the affidavit. Further elaboration is not necessary at this time.
Treatment and Supervision Plan
A comprehensive Treatment and Supervision Plan was filed, and relied on by the applicant.
Submissions on behalf of the applicant
Mr Holdenson QC relied upon written submissions dated 7 March 2019 and filed before the hearing, and, upon oral submissions made before me. In his oral submissions, Mr Holdenson outlined the opinions of Professor Ogloff which, it was submitted, should satisfy me that the requirements for the making of a SO were made out, and that I should exercise my discretion to make an order.
In respect of the one matter in dispute in the hearing, namely, the duration of the order, Mr Holdenson submitted that in light of the evidence of Professor Ogloff, I could be well satisfied to the requisite standard that the respondent would continue to pose an unacceptable risk of committing a serious violence offence in five years’ time. He submitted that even if the magnitude of the risk in five years was not high, but moderate or even low, the gravity of the likely reoffending scenario posited by Professor Ogloff dictated that the risk would still be unacceptable. Mr Holdenson submitted that the fact of the Secretary seeking an order for five years rather than a longer period could be seen, if anything, as being generous.
Submissions on behalf of the respondent
Mr de Vietri submitted that the Court could not be satisfied to the requisite degree of certainty in this case that the respondent would remain an unacceptable risk for five years. He invited me to proceed with caution and with a conservative attitude on the matter of the duration of the order. He submitted I should err on the side of the respondent’s liberty by imposing a shorter rather than a longer period. He advanced a number of reasons why he submitted this should be so.
First, he pointed out that the respondent was only the second person to come before the Court as a serious violence offender under the Act, and the first ever to be the subject of an intensive treatment and supervision condition. The inexperience of the ‘system as a whole’[25] was reason enough for a cautious approach.
[25]Transcript 115.
Secondly, the respondent had been found suitable for the intensive treatment and supervision condition and therefore would be treated at Rivergum. He was, by definition, and on the evidence of Professor Ogloff, treatable. The Court might expect some reduction in his overall risk category should the treatment be successful.
Thirdly, the very point of the intensive treatment plan was to move the respondent through a series of graduated treatment phases, so that at the end of two years, he would graduate and be suitable for placement in a less restrictive environment.
Fourthly, it was submitted I should bear in mind that the respondent had not committed any violent offending for in excess of 15 years.
Fifthly, it would be open for the Secretary, at the expiration of two years, to seek to extend the period of the order. Setting a shorter duration would provide an extra degree of accountability and motivation to the Secretary.
Sixthly, it was submitted that the principle in section 27(4) of the Act of minimum interference with liberty had application.
Mr de Vietri did not disagree with the applicability of the principle in ARM to the matter of the duration of the order. He submitted, however, that whilst the evidence of Professor Ogloff would present a basis for a finding that the respondent would pose a high risk for a long period of time, it would not justify a finding of satisfaction to the requisite standard that he would remain an unacceptable risk for five years. Mr de Vietri urged me to make the SO for a period of two years.
Submissions on behalf of the applicant in reply
Mr Holdenson submitted that as ARM made clear, the determination of the appropriate period of the order would depend on the Court’s present-day assessment of the appropriate period. Based on the available evidence now, the evidence went in only one direction, he submitted; namely, in support of five years being an appropriate period.
In respect of Mr de Vietri’s reliance on section 27(4), that provision was relevcant only to the decision as to discretionary conditions, and not to the duration of the order.
Analysis
Having considered the evidence of Professor Ogloff and the other evidentiary material, I was satisfied by what I considered to be acceptable cogent evidence to a high degree of probability that the respondent would pose an unacceptable risk of committing a serious violence offence if the supervision order was not made and he was in the community. That this was the conclusion I should reach was not in dispute in the hearing, which, in light of the overwhelming evidence in support of the conclusion, was unsurprising. Nor was any issue taken with the appropriateness of all of the conditions sought by the applicant, including the intensive treatment condition. The sole matter in issue was the duration of the order.
On that score, I have endeavoured to set out the opinions of Professor Ogloff which, in light of the overall facts of the case, including the extreme acts of violence carried out by the respondent during the index offending and the serious psychiatric condition from which he suffers, in my view would clearly warrant a finding that in five years’ time, the respondent will continue to pose an unacceptable risk of committing a serious violence offence.
In the circumstances, I decided that the duration of the SO should be five years as sought by the applicant. I reached this conclusion with regard to the law as set out in ARM and taking into account all the facts of this case.
Conclusion
I made the SO in respect of the respondent for a period of 5 years on the conditions sought by the applicant. The order is attached to these reasons.
Appendix One: Copy of Supervision Order made 29 March 2019:
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
No. S CR 2018 0279
IN THE MATTER of the Serious Offenders Act 2018 (Act)
and
IN THE MATTER of an application under section 13 of the Act for a Supervision Order
BETWEEN
THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY
Applicant
and
ST
Respondent
SUPERVISION ORDER
JUDGE:The Honourable Justice Tinney
DATE MADE: 29 March 2019
ORIGINATING PROCESS: Application for a Supervision Order
HOW OBTAINED: At hearing
APPEARANCES: Mr Paul Holdenson QC, for the Applicant
Mr Raphael de Vietri, for the Respondent
OTHER MATTERS: The Court observes that core conditions 6.1, 6.2, 6.3, 6.4, 6.6, 6.8 of this Supervision Order are restrictive conditions by operation of the Act, the breach of which may result in the imposition of a minimum of 12 months' imprisonment.
The Court is satisfied that the intensive treatment and supervision condition is necessary to reduce the risk of ST committing a serious violence offence and less restrictive means of managing the risk of ST committing a serious violence offence have been considered.
THE COURT ORDERS THAT:
ST be subject to a Supervision Order under the Act.
THIS ORDER commences on 29 March 2019.
THE PERIOD for which this order remains in force is 5 years.
THE LATEST DATE by which the Secretary to the Department of Justice and Community Safety (Secretary) must apply for the first review of this order under Part 8 of the Act is 28 March 2022.
THE LATEST DATE by which the Secretary must apply for the first review of the intensive treatment and supervision condition under section 113 of the Act is 28 March 2020.
CONDITIONS OF THE SUPERVISION ORDER
CORE CONDITIONS:
Pursuant to section 31 of the Act, the core conditions of this order are that, during the period of the order ST must:
6.1not commit a serious sex offence in Victoria or elsewhere;
6.2not commit a serious violence offence in Victoria or elsewhere;
6.3not commit an offence referred to in Schedule 3 of the Act in Victoria or elsewhere;
6.4if the court requires ST to reside at a residential facility or the Post Sentence Authority directs ST to reside at a residential facility, not engage in conduct that poses a risk to the good order of the facility or the safety and welfare of offenders or staff at the facility or visitors to the facility;
6.5if the court requires ST to reside at a residential facility or the Post Sentence Authority directs ST to reside at a residential facility, obey all instructions given by a supervision officer or a specified officer under section 183 of the Act;
6.6if the court requires ST to reside at a residential treatment facility, must not engage in conduct that poses a risk to the good order of the facility or the safety and welfare of offenders or staff at the facility or visitors to the facility;
6.7if the court requires ST to reside at a residential treatment facility, obey all instructions given by a supervision officer or a specified officer under section 183 of the Act;
6.8not engage in any behaviour or conduct that threatens the safety of any person (including ST);
6.9attend at any place directed by the Post Sentence Authority for the purpose of administering the conditions of the order;
6.10attend at any place directed by the Post Sentence Authority for the purpose of making assessments required by the court, the Secretary or the Director of Public Prosecutions for the purposes of the Act (including a personal examination by a medical expert for the purpose of providing the court with a report to assist the court in determining the need for or the form of any condition of the order);
6.11report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of section 31(12) of the Act;
6.12notify the Post Sentence Authority of any change of employment or new employment (whether paid or unpaid) at least 2 clear days before commencing the changed or new employment;
6.13not leave Victoria except with the permission of the Post Sentence Authority granted either generally or in relation to a particular case;
6.14comply with a direction given by the Post Sentence Authority under the emergency power in section 142 of the Act; and
6.15obey all instructions given by a community corrections officer or a specified officer under section 209 of the Act.
INTENSIVE TREATMENT AND SUPERVISION CONDITION UNDER SECTION 32 OF THE ACT:
Pursuant to section 32 of the Act, the following conditions apply to the Supervision Order for a period of two years:
7.1ST must reside at a residential treatment facility within the meaning of the Act;
7.2ST must attend and participate in the treatment or rehabilitation programs or activities set out in ST’s treatment and supervision plan (treatment and supervision plan);
7.3ST must not leave the residential treatment facility other than—
(a)with the permission of the Post Sentence Authority; or
(b)in accordance with ST’s treatment and supervision plan; or
(c)in accordance with an instruction given by a supervision officer or a specified officer under section 183 of the Act; and
whilst absent from the residential treatment facility he must submit to electronic monitoring and be accompanied by a Community Corrections Officer or a person approved by the Commissioner, unless otherwise directed by the Post Sentence Authority;
7.4ST must submit to electronic monitoring as to whereabouts and must—
(a)comply with any direction given by the Post Sentence Authority relating to the electronic monitoring;
(b)for 24 hours of each day be electronically monitored and wear an electronic monitoring device fitted to ST at the direction of the Post Sentence Authority;
(c)ensure that the electronic monitoring device fitted to ST remains operational (including being charged) at all times;
(d)not tamper with, damage, disable or remove any electronic monitoring device or equipment used for the electronic monitoring; and
(e)accept any visit by the Secretary to the residential treatment facility, at any reasonable time and for any purpose, including to install, repair, fit or remove any electronic monitoring device or equipment used for the electronic monitoring.
ADDITIONAL CONDITIONS UNDER SECTION 35, SECTION 37 AND SECTION 38 OF THE ACT:
Pursuant to section 35, section 37 and section 38 of the Act, the following conditions apply to the Supervision Order:
8.1ST must abstain from the consumption of alcohol except in accordance with the written directions of the Post Sentence Authority.
8.2ST must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully or abuse drugs of any kind.
8.3ST must submit to breath testing, urinalysis or other test procedures (other than blood tests) approved by the Secretary or the Chief Commissioner of Police as the case may be for the detection of alcohol or drug use, at the direction of:
(a)an officer who has reasonable grounds to suspect that ST has breached condition 8.1 and/or 8.2 of the Supervision Order by consuming alcohol and/or drugs, or
(b)in the event that ST is not residing at a residential treatment facility, a police officer who has reasonable grounds to suspect that ST has breached condition 8.1 and/or 8.2 of the Supervision Order by consuming alcohol and/or drugs.
8.4ST must not knowingly have contact with any persons convicted of trafficking prohibited drugs, including:
(a)any form of physical contact;
(b)any form of oral communication (whether face to face, by telephone or by use of the internet); or
(c)any form of written communication (whether electronic or otherwise);
except for:
(d)the purposes of treatment and rehabilitation programs and activities;
(e)contact with other residents of a residential treatment facility within the meaning of the Act, whilst he is residing at that location; or
(f)contact in accordance with the written directions of the Post Sentence Authority.
8.5ST must not knowingly have contact with JS, including:
(a)any form of physical contact;
(b)any form of oral communication (whether face to face, by telephone or by use of the internet); or
(c)any form of written communication (whether electronic or otherwise);
except in accordance with the written directions of the Post Sentence Authority.
8.6ST must not knowingly have any contact with the victims of any violent offences committed by him, or the victims' families, including:
(a)any form of physical contact;
(b)any form of oral communication (whether face to face, by telephone or by use of the internet); or
(c)any form of written communication (whether electronic or otherwise);
except in accordance with the written directions of the Post Sentence Authority.
8.7ST must not contravene the Firearms Act 1996 and/or the Control of Weapons Act 1990.
OTHER ADDITIONAL CONDITIONS UNDER SECTION 36 OF THE ACT:
Pursuant to section 36 of the Act, the following conditions apply to the Supervision Order:
9.1Pursuant to section 36(1) of the Act, the Post Sentence Authority is authorised to give directions to ST in relation to the operation of any condition of this Supervision Order; and
9.2Pursuant to section 36(7) of the Act, ST must comply with any direction given under an authorisation referred to in section 36 of the Act.
DATE JUSTICE TINNEY
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