Secretary to the Department of Justice and Community Safety v TA

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0228

IN THE MATTER of the Serious Offenders Act 2018
and
IN THE MATTER of an application under s 13 of that Act for a Supervision Order
BETWEEN
The Secretary to the Department of Justice and Community Safety
Applicant
and
TA	Respondent

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATES OF HEARING:	3, 9 and 24 March 2021 and 9 and 23 April 2021
DATE OF JUDGMENT:	27 August 2021
CASE MAY BE CITED AS:	Secretary to the Department of Justice and Community Safety v TA
MEDIUM NEUTRAL CITATION:	[2021] VSC 530

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PUBLIC LAW – Application for supervision order – Whether respondent poses an unacceptable risk of committing a serious violence offence if a supervision order is not made and the respondent is in the community – Whether supervision order, if made, should include an intensive treatment and supervision condition – Application for supervision order refused – Serious Offenders Act 2018 ss 1, 8, 13, 14, 15, 27, 31, 32, 33, 34, 35, 279.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Flynn QC	Victorian Government Solicitor
For the Respondent	Ms N Karapanagiotidis	Stary Norton Halphen

HER HONOUR:

By application dated 11 September 2020 the Secretary to the Department of Justice and Community Safety (‘Secretary’) seeks a Supervision Order (‘SO’) in respect of the respondent, pursuant to s 13 of the Serious Offenders Act 2018 (‘Act’).

The Secretary argues that the respondent poses an unacceptable risk of committing a serious violence offence if a SO is not made and he is in the community. The SO is sought for a period of four years. The Secretary seeks a number of conditions to the SO beyond the core conditions, including an intensive treatment and supervision (‘ITS’) condition.

The respondent opposes the making of the SO at all. Alternatively, in the event that the SO is made, the respondent opposes the imposition of the ITS condition.

For the reasons that follow the application is refused.

Procedural history

It is useful to set out the procedural history of the application.

The Secretary filed her Notice of Application for Supervision Order on 11 September 2020, relying principally upon the Assessment Report of Ms Rachel Chan dated 31 July 2020 (‘first Chan report’).[1] Notably, the non-core conditions sought at that stage did not include an ITS condition.
[1]The materials relied upon by Ms Chan for her assessment and the antecedents of the respondent were also tendered.

On 15 October 2020 the respondent was released from custody on parole, which was due to expire on 17 December 2020.

On 29 October 2020 the respondent’s address was found to be unsuitable on account of the anti-social nature of his co-residents (being his mother and sister).

On 12 November 2020 the address was deemed suitable as a result of his mother and sister moving out of the house and into alternate accommodation.

At a directions hearing on 19 November 2020 the application was listed for hearing on 2 December 2020 and orders for the filing of material were made. On 2 December, the respondent made application for an adjournment of the hearing to allow him an opportunity to obtain his own psychological assessment. The Secretary did not oppose that application and had on 1 December 2020, in anticipation of the adjournment application, filed an application for an interim supervision order (‘ISO’), pursuant to s 46 of the Act. Subject to certain conditions, the respondent did not object to the making of the ISO. Again, notably, the Secretary did not then seek an ITS condition as part of the ISO.

On 2 December 2020 I made the ISO in the terms sought by the Secretary for a period of four months, to commence on 17 December 2020. The application for the SO was then listed for hearing for two days commencing 8 February 2021.

On 11 December 2020 the respondent’s parole was cancelled.

On 15 December 2020 the respondent was charged with affray and on 17 December 2020 the respondent was received into custody.

On 24 December 2020 the Secretary notified the Court and the respondent that she was considering the possibility of pursuing the addition of an ITS condition as part of the application for the SO.

On 18 January 2021 the respondent was found suitable for placement at Rivergum Residential Treatment Centre (‘Rivergum’), should the ITS be granted.

On 22 January 2021 the Secretary notified the Court and parties that a final decision regarding the addition of an ITS condition as part of the application for the SO would be made by 1 February 2021.

On 27 January 2021 the affray charge against the respondent was withdrawn.

On Friday 5 February 2021 the Secretary filed an application to vary the conditions of the ISO by adding an ITS condition. An addendum Assessment Report of Ms Chan, dated 25 January 2021 (‘second Chan report’), was also filed.

On Monday 8 February 2021 the respondent made an application for a further adjournment of the hearing of the SO application due to difficulties in obtaining expert evidence. Further, having been served with the application to vary the ISO to include an ITS condition less than three days prior (and over a weekend), the respondent also sought an adjournment of that application. I granted both adjournment applications.

On 15 February 2021 the respondent was released from custody and the ISO commenced.

Ultimately the application for the SO, amended to include an application for an ITS condition, was heard over five days in March and April 2021.

On 9 June 2020 I extended the ISO for a period of four months.

Personal background of the respondent

The respondent is now 30 years of age.

The respondent’s criminal history dates from 2008, as follows:

(a)On 19 May 2008 he appeared before the Children’s Court charged with (i) drive without “L” plates displayed; (ii) learner fail to have qualified driver; (iii) number plates not affixed as required; (iv) use unregistered motor vehicle; and (v) conspiracy to commit indictable offence. He was discharged and completed the ‘Ropes’ program.

(b) On 26 May 2008 he appeared before the Children’s Court charged with armed robbery. He was sentenced to six months’ probation without recording a conviction.

(c) On 13 October 2008 he appeared before the Children’s Court charged with (i) learner fail to have qualified driver; (ii) drive without “L” plates displayed; (iii) use vehicle – not safe/not roadworthy; and (iv) fail to carry learner permit. The charges were found proven and dismissed without recording a conviction, and he was released upon entering into an accountable undertaking.

(d) On 16 March 2009 he appeared before the Children’s Court charged with (i) fail to state name and address; (ii) fail to keep left of dividing line; (iii) drive without “L” plates displayed (two charges); (iv) state false name when requested; (v) state false address when requested; (vi) learner fail to have qualified driver (two charges); (vii) exceed signed speed limit (80 KPH); and (viii) intentionally cause injury. For offences (i) – (vii), he was convicted and fined. For offence (viii), the matter was adjourned to 14 September 2009 and he was released on a good behaviour bond.

(e) On 24 October 2011 he appeared before the Magistrates’ Court for (i) traffick amphetamine; (ii) obtain property by deception; (iii) make a false document to prejudice of other; (iv) use a false document to prejudice other; (v) theft of a motor vehicle; (vi) theft; (vii) assault with weapon; (viii) possess category A/B longarm without licence; (ix) possess prohibited weapon without exemption or approval (two charges); (x) criminal damage; (xi) stalk another person (Crimes Act); (xii) fail to answer bail; (xiii) resist police; (xiv) own unregistered vehicle used on highway; (xv) fraud use identifying number (Road Safety Act); (xvi) drive whilst authorisation suspended; (xvii) obtain property by deception; and (xviii) handle/receive stolen goods. For offence (i), he was sentenced to one month imprisonment. For offences (ii) – (vii), he was sentenced to an aggregate of four months’ imprisonment, wholly suspended pursuant to s 27 of the Sentencing Act 1991 (now repealed). For offences (viii) – (xviii), he was convicted and fined.

(f) On 23 February 2012 he appeared before the County Court, and was convicted of (i) reckless conduct endangering serious injury; (ii) blackmail (three counts); (iii) reckless conduct endangering life; (iv) make threat to kill; (v) drive in a manner dangerous; (vi) threat to inflict serious injury; (vii) armed robbery; (viii) assault with a weapon; (ix) false imprisonment; (x) possess amphetamine; and (xi) unlawful assault. He was sentenced to four years’ imprisonment with a non-parole period of two years.

(g) On 2 March 2012 he appeared before the Magistrates’ Court and was convicted and imprisoned for one month for driving whilst authorisation suspended. He was also convicted and discharged in relation to (i) exceed 80 speed sign by 10km and (ii) fail to give left change direction signal.

(h) On 18 December 2015 he appeared before the Supreme Court, charged with intentionally cause serious injury and prohibited person possess a firearm. He was convicted and sentenced to five years’ imprisonment with a non-parole period of three years. He was sentenced as a ‘serious offender’.

(i) On 27 March 2020 he appeared before the Magistrates’ Court, charged with (i) possess Buprenorphine and (ii) possess a category 2 item in a prison. He was convicted and given an aggregate fine.

This history is consistent with the reported difficulties of the respondent’s youth.

The applicable legislation

Section 1 of the Act sets out its purposes (in part) as follows:

(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 is made pursuant to s 13(1) of the Act, which provides that the Secretary may apply to the Court for a supervision order in respect of a person who is an eligible offender at the time the application is commenced.

The respondent was an eligible offender within the meaning of s 8(1) of the Act when the application was filed, as he was over the age of 18 years and serving a custodial sentence originally imposed by this Court for a serious violence offence within the meaning of s 3 of the Act, namely, intentionally cause serious injury.[2] The respondent is also an eligible offender pursuant to s 8(3) of the Act as he is subject to an ISO.
[2]The respondent was sentenced to five years’ imprisonment (and also 12 months imprisonment to be served concurrently for being a prohibited person in possession of a firearm).

Section 14 of the Act governs the determination of the application. Relevantly it provides that the Court may make a SO in respect of an eligible offender if, and only if, it is satisfied that the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a SO is not made and the offender is in the community.[3] In making that determination the Court must have regard to any assessment report or progress report filed by the Secretary or offender, any other filed or tendered report, any other evidence given in relation to the application and any other matter the court considers appropriate.[4] But the Court must not have regard to the means of managing the risk or the likely impact of a SO on the offender.[5]
[3]The Act, s 14(1)(b). No issue arises in the case as to the commission of a serious sex offence.
[4]The Act, s 14(2)(a).
[5]The Act, s 14(2)(b).

The burden of proving that an offender poses or will pose an unacceptable risk as defined lies with the Secretary.[6] 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.[7] The Court may determine that the offender poses or will pose an unacceptable risk 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.[8]
[6]The Act, s 14(5).
[7]The Act, s 14(3).
[8]The Act, s 14(4).

If so satisfied, the Court may make a SO or make no order.[9]
[9]The Act, s 14(6).

Unacceptable risk

The term ‘unacceptable risk’ is not defined in the Act but was considered by the Court of Appeal in Nigro v Secretary to the Department of Justice[10] in the context of the now-repealed Serious Sex Offenders (Detention and Supervision) Act 2009. The Court observed:

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.[11]

[10](2013) 41 VR 359; [2013] VSCA 213 (‘Nigro’).

[11]Nigro, [117].

The Court emphasised that gravity of harm in the event that the risk materialises is the focus of the assessment, stating:

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.[12]

[12]Nigro, [130].

The Court also emphasised that the unacceptable risk test:

… 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.[13]
[13]Nigro, [5].

Conditions

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

The purposes of SO conditions are set out in s 27 of the Act. The primary purpose is to reduce the risk of an offender re-offending by committing a serious sex offence or a serious violence offence or both, or an offence referred to in Schedule 3.[14] The secondary purpose is to provide for the reasonable concerns of the victim or victims of the offender in relation to their own safety and welfare.[15]
[14]The Act, s 27(1).
[15]The Act, s 27(2). No s 134 victim submission was made in this matter.

In order to reduce the risk of the offender re-offending the conditions may promote the rehabilitation and treatment of the offender and address types of behaviour that may increase the risk of the offender committing a serious sex offence or a serious violence offence or both or engaging in any behaviour or conduct that threatens the safety of any person (including the offender).[16]
[16]The Act, s 27(3).

The Court must ensure that any SO conditions, other than the core conditions, constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions and are reasonably related to the gravity of the risk of the offender re-offending.[17]
[17]The Act, s 27(4).

Under s 32 of the Act, the Court may impose an ITS condition, that is a condition requiring an offender to reside at a residential treatment facility if the Court is satisfied that the condition is necessary to reduce the risk of the offender committing a serious sex offence or a serious violence offence or both and less restrictive means of managing the risk have been tried or considered.[18] In determining whether to impose an ITS condition the Court may have regard to the means of managing the offender’s risk and the likely impact of the SO on the offender[19] and must consider the treatment and supervision plan filed by the Secretary and any other matter considered appropriate.[20]
[18]The Act, s 32(1).
[19]The Act, s 32(2).
[20]The Act, s 32(3).

ITS condition

If an ITS condition is imposed, then, pursuant to s 32(4), the Court must impose the following conditions:

(a)the offender must attend and participate in the treatment or rehabilitation programs or activities set out in the treatment and supervision plan;
(b)the offender must not leave the residential treatment facility other than–
(i) with the permission of the Authority; or
(ii)in accordance with the treatment and supervision plan in respect of the offender; or
(iii)in accordance with an instruction given by a supervision officer or a specified officer under section 183;

(c)if the offender leaves that residential treatment facility, the offender must, unless otherwise directed by the Authority–
(i)be accompanied by a community corrections officer or a person approved by the Commissioner; and

(ii) submit to electronic monitoring;
(d)the offender must submit to electronic monitoring within the residential treatment facility;
(e)the offender must comply with any direction given by the Authority relating to the electronic monitoring;
(f)the offender must for 24 hours of each day be electronically monitored and wear an electronic monitoring device fitted to the offender at the direction of the Authority;
(g)the offender must ensure that the electronic monitoring device fitted to the offender remains operational (including being charged) at all times;
(h)the offender must not tamper with, damage, disable or remove any electronic monitoring device or equipment used for the electronic monitoring;
(i)the offender must 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.

An ITS condition remains in force for a period not exceeding two years specified by the Court.[21]
[21]The Act, s 32(5).

The evidence

In support of the application the Secretary relied upon the following:

(a)the first Chan report;

(b) the second Chan report;

(c) an affidavit of Joseph Mollica sworn 3 February 2021;

(d) an affidavit of Poppy Jane Jacobs affirmed 25 November 2020 and a further affidavit of Poppy Jane Jacobs affirmed 5 February 2021 (both for the purpose of exhibiting relevant material);

(e) the oral evidence of Ms Chan, Mr Joseph Mollica and Ms Franca Guglielmino;

(f) a view of the Rivergum facility;

(g) an incident report dated 23 March 2021; and

(h) CCTV of the 2 February 2021 incident.

The respondent relied upon:

(a)the Assessment Report of Mr Jeffrey Cummins dated 1 March 2021 (‘Cummins report’)
(b)the oral evidence of Mr Cummins;
(c)a bundle of material including:

(i) Real Understanding of Self Help, completion report (24 March 2018);

(ii) Individual Letting Go & Getting On, completion report (9 January 2018);

(iii) Individual Treatment, completion report (18 March 2019);

(iv) Risk and Compliance Report (30 October 2020); and

(v) Case Note, Corrections Victoria (12 November 2020).

(d)three letters in support of the respondent (from Ms S (partner), Ms A (sister) and Mr Iacovou (accountant)).

The major issue arising in the evidence was the difference in opinion between Ms Chan and Mr Cummins as to the risk of future violent offending posed by the respondent. Ms Chan assessed that risk as being ‘high’ whereas Mr Cummins assessed it as ‘moderate’. It is therefore necessary to canvass the psychological evidence in some detail.

Prior to doing so, the less controversial aspects of the evidence will be summarised.

Affidavit and Evidence of Joseph Mollica

Mr Mollica is the Principal, Clinical Practice, Forensic Intervention Services with Corrections Victoria. His affidavit provided an overview of the operating model, clinical treatment framework and suitability criteria for Rivergum.

Mr Mollica described Rivergum as a ‘short-term intensive treatment and supervision facility’ which provides intensive treatment, supervision and other interventions by a multidisciplinary team of onsite clinicians.

He then described three operating principles.

The first is ‘therapeutic environment’. Mr Mollica stated that Rivergum’s operating philosophy is underpinned by evidence and international best practice. It is based on ‘Therapeutic Community’ principles including a flattened hierarchy, democratisation, open communication and communalism. Rivergum’s operating principles are respect, belonging, responsibility, participation and openness and these principles are embedded into its day-to-day activities and operations.

The second operating principle is ‘intensive intervention, treatment and case management’. The treatment for residents is primarily group-based and structured in line with effective correctional programming. An individualised Case Formulation and Treatment Plan is developed during the first six weeks of a resident’s arrival and individual treatment is provided as an adjunct to group treatment interventions.

There are three stages of the clinical services framework. The preparatory stage is to encourage increased levels of motivation and readiness. The provision phase is to increase engagement with treatment activity and reduce attrition. The progression phase is to increase opportunities for maintaining and generalising treatment gains. In total all three phases take place over a two-year timeline. That has ‘limited flexibility’, but optimum periods are set for each phase. Mr Mollica gave details of each of the phases.

The third operating principle is ‘transition and reintegration’. Rivergum residents are assisted with reintegration into another residential facility or the community. They are taught independent living and socialisation skills, problem solving of everyday living issues as well as given access to the community to assist in transition.

Mr Mollica detailed suitability considerations for residency at Rivergum. Its model requires residents to demonstrate an ongoing commitment to analysing their own behaviour with a view to gaining insight into and a sense of responsibility for their own behaviour. Mr Mollica stated that the respondent was suitable for placement at Rivergum, as he did not fall within the categories of ‘unsuitable’ individuals. Those categories relate to cognitive capacity, ongoing inability or unwillingness to engage in treatment, likely perverse impact on risk of recidivism arising from group intervention, those who cannot effectively and safely engage in group programs, those with acute/unstable mental health issues and the need for medical intervention beyond the capacity of the facility.

Mr Mollica gave oral evidence concerning Rivergum in conformity with his affidavit. He was also asked about the Treatment and Supervision Plan dated 18 January 2021 for the respondent annexed to his affidavit. Its purpose is to understand the resident individually. It is a fluid document, to be reviewed along the way. It states:

It is therefore considered that Rivergum affords [the respondent] the best opportunity to decrease his risk of violence offending and increase community safety. Rivergum can offer [the respondent] significant levels of treatment that cannot be replicated in a community setting and the support and monitoring he requires to reduce his risk of violence. The secure environment that Rivergum offers residents will assist [the respondent] to address his outstanding treatment and rehabilitation needs with reduced exposure to factors identified to increase his risk.

Mr Mollica stated that it was the integrated nature of Rivergum and constant accountability that made Rivergum better for the respondent than separate treatment in the community. He said that the Treatment and Supervision Plan took account of both Chan reports. Mr Mollica said that Rivergum could offer the treatment readiness therapy, offence specific treatment and drug treatment Ms Chan identified as necessary to reduce the respondent’s risk.

In cross-examination Mr Mollica agreed that Rivergum is set up to cater for people with personality disorders and that the respondent does not have a personality disorder.

At the time of giving oral evidence, Mr Mollica stated that there were six residents at Rivergum. Two were serious sex offenders and four were serious violence offenders, although there might be overlap between the categories. A couple were in their early 30s, the rest in their mid-to-late 40s or early 50s.

Mr Mollica stated that the drug and alcohol treatment at Rivergum was provided by the internal clinicians and not by an external organisation such as the Australian Community Support Organisation (‘ACSO’). Mr Mollica agreed that the supervised leave of phase three of the program would occur at least 15 months into the program. Certain employment was allowed in the facility but residents were not permitted to leave the facility to work. Mr Mollica said that if the respondent was in Rivergum, he would be able to continue his online clothing business by having his sister maintain it. The respondent would only have limited and structured access to the internet. Residents are allowed to use iPads between 7pm and 9pm and occasionally at other times. Mr Mollica said that there were no residents who had maintained independent work outside the facility.

Mr Mollica disagreed with the suggestion that it was hard to form prosocial relationships at Rivergum but agreed that the clinicians would not want the residents to continue to associate with each other outside the facility. He said that there had been no specific consideration of how the respondent would interact with the current residents, but the model is designed to deal with people who have not done well elsewhere.

Mr Mollica said that he had become aware that the respondent had commenced a romantic relationship in late 2020. He accepted that Rivergum would present challenges for that relationship, but potentially it could be improved and strengthened by the respondent’s residency.

When asked about the view of Mr Cummins that the efficacy of the program could be compromised because it is mandated, Mr Mollica stated he did not agree. He suggested that a momentum builds over the two-year period and noted that equivalent programs that have been running overseas for about 11 years were reporting “pretty good” outcomes.[22] Mr Mollica said that he understood that the respondent was opposed to being placed in Rivergum. While initially this could be problematic, Mr Mollica said that an expectation of initial opposition was built into the program and there was a chance for that attitude to be turned around. If this did not occur in the first phase, there was a chance that the length of the program would be extended. He said that if someone refused to move beyond the readiness phase, that individual would probably be exited from the program. That had not yet happened, but would be problematic for that individual’s risk profile.
[22]Mr Mollica accepted that there was limited data regarding the efficacy of the facility, given the small number of ‘graduates’ from Rivergum, and that Corrections Victoria was still setting up frameworks for evaluating data.

Mr Mollica agreed that the respondent had completed all relevant prison based offending behaviour programs and had been recommended for the ‘Maintaining Change’ program in the community. He said that program goes for about 20 weeks, being ten fortnightly sessions. Mr Mollica agreed that the respondent did not have an opportunity to do that program during the time he was on parole.

When asked about the Treatment and Supervision Plan, Mr Mollica agreed the noted refusal to accept community supports referred to the respondent declining material aid. He agreed that the respondent attended a couple of appointments with the ACSO but indicated that he was not using drugs. Mr Mollica said that the respondent was exited from the program because of lack of engagement and motivation, but accepted that he did not refuse contact with the ACSO. Mr Mollica accepted that the respondent attended twice weekly sessions with a senior parole officer, that engagement was initially positive but decreased towards the time his parole was cancelled. Mr Mollica further agreed that the Return to Custody report dated 8 January 2021 noted that the respondent maintained contact with his case manager throughout his parole, demonstrated sound problem-solving skills relating to housing and sought advice and clarification where necessary.

When asked whether the respondent had some protective factors available to him, Mr Mollica said he was not sure. While the respondent had a business plan, he did not know how that would protect the respondent from his own behaviour. Mr Mollica made the same comment with respect to the respondent’s new relationship.

Mr Mollica agreed that there were structured supports available to manage high risk offenders in the community, including psychological supports. He said that his evidence was that the respondent meets the criteria for eligibility for Rivergum and that the facility provides a unique opportunity for significant, long-lasting change.

In re-examination Mr Mollica said that Rivergum had an affiliation with Federation University and residents could access its programs, including business programs. He also said that a number of people are resistant at the start of the Rivergum program but through engagement most have been able to turn that resistance around.

Evidence of Franca Guglielmino

Ms Guglielmino is the Acting Director of the Post Sentence Branch (‘PSB’) within Corrections Victoria. She was familiar with the materials relating to the respondent.

Ms Guglielmino said that when the respondent was released on parole he was subject to residence, curfew, drug and alcohol testing, treatment and non-association conditions. Five individuals were named with respect to the non-association condition.

She said that the respondent returned four diluted urine samples before being warned by the Adult Parole Board (‘APB’) on 26 November 2020 that any future diluted sample would be considered to be a positive result. The respondent then returned a further diluted sample on 9 December 2020. His parole was cancelled on 11 December 2020 and he was returned to custody on 17 December 2020.

With respect to drug and alcohol counselling on parole, Ms Guglielmino said that the respondent had an appointment by telephone on 22 October 2020 but that was cut short because he was in a car with friends. A second appointment occurred on 8 December 2020. She said that he was not motivated to engage in counselling and did not believe he had an issue with substance abuse. Ms Guglielmino said that when the possibility of residential drug treatment was raised with him, the respondent said he did not have an issue and was not motivated to attend residential rehabilitation.

Ms Guglielmino said that since the respondent had been on the ISO he was referred to IPC Health for drug counselling. He had an appointment on 19 February 2021 and a second appointment had been scheduled, but was rescheduled by the clinician. The ISO also meant that he was withdrawn from the Maintaining Change program waitlist and now needed to engage with treatment readiness. To that end he had had one appointment with the high risk complex needs clinician. Ms Guglielmino said that the respondent had been directed for drug testing. There have been no positive results but there have been two diluted samples on 16 and 22 February 2021. She said that on 6 March 2021 the respondent attended at a pathology collection unit other than the one directed, which meant that the sample could not be taken. Ms Guglielmino stated that the respondent was aware of the steps he needed to take to avoid a diluted sample.

Ms Guglielmino was then asked about the incident in Port Phillip Prison on 2 February 2021. She could only say that the respondent had been involved in an altercation with another prisoner. There was CCTV footage of that incident.

With respect to the non-association condition, Ms Guglielmino said that the respondent was directed not to have contact with five individuals. On 15 February 2021 he was in the presence of one of them.

Ms Guglielmino said that the respondent was living in the family home and in receipt of Centrelink benefits. He was establishing a business but had yet to receive income from it.

In cross-examination Ms Guglielmino said that she did not know if the respondent had previously been directed to attend the pathology clinic where he attended on 6 March 2020. She agreed that at 11.20am the respondent contacted the after-hours duty worker to tell them that he could not submit to the testing and that there was a note that that duty worker had contacted the nurse at the clinic where the respondent had attended to ask if an exception could be made for testing to occur. It could not, and the respondent was directed to leave.

Ms Guglielmino said that neither of the respondent’s ISO case workers had complained about the respondent’s conduct towards them. She accepted that on 23 February 2021, one case worker sent a text message to the respondent congratulating him on a negative urine test. A further such message was sent on 5 March 2021 regarding a further negative result on 4 March.

Ms Guglielmino agreed that the case workers regarded the respondent’s new relationship as positive. The respondent’s new partner was employed and did not have a criminal record.

When it was suggested that the incident of prohibited association on 15 February 2021 was with a childhood friend who had come to visit the respondent upon his release, Ms Guglielmino agreed. She also agreed that the respondent had stated that he had not spoken to the other individuals for some time.

Ms Guglielmino agreed that the respondent had been having contact with the community support program leader as well as a drug and alcohol worker. She agreed that the recommendation was for complex alcohol and drug counselling and the respondent was willing to engage with that, albeit he did not want to enter a residential treatment facility.

As regards the 2 February 2021 incident, Ms Guglielmino said that the matter had been referred to police but there had been no further action. She also agreed that the respondent may undertake concreting work while working on his clothing business.

In re-examination Ms Guglielmino said that she was not aware if there had been any outcome as to the 2 February 2021 incident recorded by Port Phillip Prison.

First Chan report

Ms Chan interviewed the respondent at Port Phillip Prison via the Zoom platform and she reports that he engaged meaningfully in the process. He demonstrated an appropriate measure of goodwill in answering questions with those responses being ‘generally thoughtful, measured, and spontaneous.’[23] But Ms Chan did note that the respondent became ‘irritable and exasperated when asked to reflect upon his considerable history of non-compliance in prison’.[24] She said that he sought to distance himself from such incidents by ‘denying culpability or by justifying his behaviour’.[25] Nonetheless, the respondent stated that he had used his placement on a long-term management regime between 2019 and 2020 to learn more effective ways to manage his anger.
[23]First Chan report, [5].
[24]First Chan report, [6].
[25]First Chan report, [6].

Ms Chan detailed the criminal history of the respondent. With respect to the index offending the respondent stated that he believed that the victim posed a credible risk of harm to his sister but, with hindsight, he should have reported the matter to police and not taken the matter into his own hands. He expressed regret for his behaviour.

Ms Chan also detailed the psychosocial and developmental history of the respondent. She notes that growing up he was emotionally close to his mother but, as a teenager clashed with his father due to his father’s traditional cultural values. The respondent’s father died from cancer in 2017. He maintains a close and supportive relationship with his mother and sister. The respondent promised his father before his death that he would look after his mother and sister, a promise he stated was serious.

The respondent finished school sometime in year 10 due to academic and behavioural issues. He has held various positions of employment in the community. He has previously stated that drug use and antisocial behaviour has negatively impacted upon those positions. Ms Chan noted that his employment history during periods of incarceration was of ‘an established and consistent pattern’[26] of poor attendance at work, confrontational and disrespectful attitudes towards work supervisors and dismissal from industry jobs. The respondent told Ms Chan ‘that he did not go to prison to work’.[27] She noted that since April 2020 he had worked as a kitchen billet and exhibited pride at the status and responsibility of the position. The respondent told Ms Chan that upon his release he intended to develop his own business designing and selling clothing.
[26]First Chan report, [29].
[27]First Chan report, [29].

Ms Chan noted that the respondent was currently single, but expressed a strong desire to marry and have children in the future.

The report then turned to the respondent’s psychiatric/psychological, medical and substance abuse history. Ms Chan noted that both by self-report and file material, the respondent does not have a history of mental health issues. He is also in good physical health. The respondent commenced smoking cannabis as a teenager and then progressed to using amphetamine and crystal amphetamine or ‘ice’ until he was first incarcerated in 2011. He had a limited history of cocaine use and drank alcohol socially. He denied intravenous drug use. Ms Chan noted that the respondent was abusing steroids at the time of the index offence. In custody he had misused buprenorphine.

Ms Chan then turned to the treatment and other programmatic interventions of the respondent. He attended five out of six sessions of the ‘Exploring Change Program’ in 2012, although his participation was not satisfactory. Between March and September 2013 he attended all 72 sessions of the ‘High Intensity Violence Intervention Program’. The assessment of that participation was, in broad terms, that he made some gains in insight but had not demonstrated changes. At the conclusion of that program he was recommended for the Maintaining Change program during his parole period. He was waitlisted for that program but in November 2014 his parole was cancelled.

In December 2015 when the respondent returned to prison as a result of the index offence, he was assessed in March 2016 and targeted areas for intervention were identified. It was recommended that he be assessed for the ‘Real Understanding of Self Help’ (‘RUSH’) program. He commenced RUSH in December 2017 and completed it in March 2018. He attended 18 out of 20 sessions and overall was assessed to have responded well, albeit that he believed that some of the program concepts were not relevant to him. As to his level of insight, it was noted that he demonstrated good insight into various aspects of his functioning, such as deficits in emotional regulation, propensity to respond easily to provocation and his aggressive communication style during conflict. He was also reported to demonstrate appropriate ways of challenging these distortions.

At the conclusion of the RUSH program the respondent was recommended for the ‘Making Choices’ program and the ‘Letting Go & Getting On’ (‘LEGGO’) program. Given his implication in a drug incident in prison, that program was delivered on an individual basis and completed in October 2018. The respondent attended all 26 sessions. His overall performance was good. He had a positive attitude and he developed insight into his propensity to react impulsively to provocation. He developed strategies to deploy to manage his behaviour upon his release into the community. Ms Chan noted that the author of the completion report acknowledged that the respondent would find it challenging in the community to effect the changes and that any such changes would likely occur over a period.

At the conclusion of these programs the respondent had completed all relevant prison based offending programs. He then had individual treatment sessions to assist him to consolidate his previous treatment gains. He was again recommended to undertake the Maintaining Change program in the community.

The respondent has also engaged in several episodes of drug and alcohol treatment in custody. In 2012 and again in 2016 he was ambivalent about making changes to his drug using behaviour. In 2018 he had individual counselling and identified his treatment goals as including remaining abstinent from drugs. The treatment focused on a relapse prevention plan.

Ms Chan then summarised the respondent’s conduct in custody dating from 2011, noting instances of non-compliance with directions, involvement in physical and verbal altercations with other prisoners and allegations of drug possession and trafficking. Some 39 incidents are detailed. The respondent’s conduct under supervision in the community is also canvassed.

The report then details the psychological testing administered to the respondent. The Paulhus Deception Scale (‘PDS’) designed to assess ‘socially desirable responding’ was deployed. He was found to have a profile of an individual who is ‘restrained and well socialised’ but lacking insight into how to deal with problems. Further, the respondent wants to portray himself as a ‘good’ and ‘normal’ person. The Depression Anxiety Stress Scale (‘DASS’) revealed no issue of depression or anxiety.

Ms Chan then administered two tools designed to assess the respondent’s risk of violent offending, namely the Hare Psychopathy Checklist Revised (‘PCL-R’) and the Historical, Clinical and Risk Management-20 (‘HCR-20’). The former is designed to reliably identify traits of psychopathy, being a type of personality disorder. The latter is the ‘gold standard’ structured professional guideline for assessing the risk of institutional and community violence in adults.

The respondent’s score on the PCL-R was 20, meaning that he scored below the cut-off for the criteria of psychopathy (diagnosis of which is recommended by a score of 30 or above). But Ms Chan stated that the score ‘highlighted particular elevations across items that endorsed evidence for social deviance’.[28] These included poor behavioural controls, irresponsibility and criminal versatility.
[28]First Chan report, [72].

The HCR-20 addresses 20 items organised around three domains, namely historical, clinical and future variables. The respondent was found to have definite evidence for eight out of ten historical factors, two out of five clinical factors and all five future risk factors. Ms Chan’s opinion was that the respondent presented as a high risk for future violent offending. The most significant contributing factors to that assessment were the historical factors.

Ms Chan also administered the Structured Assessment of Protective Factors – Second Edition (‘SAPROF’). She found few areas currently identified as protective against the future risk of violence posed by the respondent.

Ms Chan then addressed her case formulation. She noted the respondent’s history of drug use and violence and the assessment that his participation in treatment programs has not resulted in any demonstration of attitudinal and behavioural shifts over a prolonged period to suggest that he has adequately internalised his treatment learnings to a degree sufficient to reduce his risk. She found that the apparent lack of protective factors ‘does not bode well’.[29]
[29]First Chan report, [109].

Ms Chan then made intervention recommendations as to therapeutic intervention, namely individual treatment followed by individual offence specific treatment with a forensically trained psychologist. If success could be demonstrated by behavioural and attitudinal changes over a prolonged period, then Ms Chan recommended the respondent participate in a treatment maintenance program. Ms Chan further recommended ongoing drug treatment.

As to case management, Ms Chan made several recommendations for supervision of the respondent in the community such as a support plan, monitoring of illicit substances, resettlement assistance and employment/vocational training. His environment and the network of individuals around him were noted to be critical to assist him with leading an offence-free lifestyle. Ms Chan recommended that with the consent of the respondent, educative work with his family and others be undertaken.

Ms Chan then addressed s 269(1) of the Act. In her opinion:

(a) The respondent presents a high risk of committing a serious violence offence. He is not a risk of committing a serious sex offence.

(b) His violent offending is likely to involve him using violence towards another or others in situations where he perceives he has been disrespected or threatened, or he perceives the need to protect individuals to whom he is loyal, or he perceives his sense of entitlement is threatened. The nature of the violence is likely to involve direct physical violence towards another but is also likely to involve the use of weapons to threaten and/or perpetrate violence of potentially lethal severity. A victim of such violence is likely to suffer serious psychological and/or physical harm but also potentially fatal physical harm. His propensity for violence is likely to increase when he is drug affected or in the company of antisocial/criminal peers.

(c) The respondent has participated in rehabilitation and treatment programs.

(d) There is limited evidence that his participation has had a lasting or positive effect on his behaviour. This is particularly so given his ‘persistent and ongoing’ involvement in incidents of non-compliance, drug use and drug trafficking in custody.

(e) Given his upbringing and drug use, violence has become normalised for the respondent.

(f) His risk increasing factors include maintenance of beliefs and attitudes about the legitimacy and efficacy of using violence towards others, ongoing drug use and association with antisocial peers. His risk decreasing factors include his positive and meaningful engagement in offence specific intervention, drug treatment, pre and post-release support and association with prosocial peers.

Ms Chan concluded her report with the opinion that the respondent presents as a high risk of committing a further serious violent offence.

Second Chan Report

Prior to preparing her second report, Ms Chan was asked to consider four specific questions, namely:

(a) Would Rivergum be the optimal environment for [the respondent] to reside in to address his outstanding treatment need and ultimately to reduce his risk?

(b) Having regard to the purpose of the Rivergum facility and the nature of the short-term treatment program, do you consider that [the respondent] would benefit from participating in the Rivergum treatment program?

(c) Specifically, would participating in this program reduce [the respondent’s] overall risk profile?

(d) If Rivergum is not appropriate, where else would be appropriate?

Ms Chan interviewed the respondent for 30 minutes via a video link to Port Phillip Prison on 14 January 2021. He engaged in the interview appropriately.

Ms Chan notes that the respondent was granted parole on 15 October 2020 and that parole was cancelled on 15 December 2020. The reasons for that cancellation included his return of several diluted urinalysis samples, being late for curfew and breaching a non-association condition of his parole order. Ms Chan further writes that the respondent was also involved in an incident on 14 December 2020 for which he was charged with affray and for which there was a future court date. The offending concerned a street fight with several other males.

Ms Chan notes that the respondent’s conduct in prison between July 2020 and his parole in October 2020 and again since December 2020 raised no issues or concerns in relation to his conduct, behaviour or attitude.

As to his conduct on parole, Ms Chan described his behaviour as ‘repeated non-compliance’. He attended urinalysis on 11 occasions and returned diluted samples on five occasions. On 26 November 2020 prior to the last such occasion (on 9 December 2020), he received a formal warning by the APB that in the event of any further dilution it would be difficult for the APB not to cancel the parole order. Ms Chan notes that the APB took no further action with respect to the curfew breach and contact via social media with a co-offender.

As to the alleged affray, Ms Chan relied on the Victoria Police summary to describe the respondent’s attendance at a pre-arranged fight where he was involved in a physical altercation with several other males. He was (allegedly) accompanied by four to five unknown males, stood in the middle of the street and raised his hands to fight. The other males produced metal or wooden poles, one striking the respondent to the head and causing a laceration above his eye. The respondent and other males eventually dispersed.

As to recent treatment progress, Ms Chan notes that whilst on parole the respondent attended two appointments with a community drug and alcohol agency but stated that he did not believe he had any drug issues to address. He was still waitlisted for the Maintaining Change program, but it was unlikely that he would be able to commence that program prior to the expiration of his sentence.

During his interview with Ms Chan on 14 January 2021 the respondent acknowledged that he had underestimated the extent to which he enjoyed his (restricted) liberty on parole and found his return to custody confronting. He further acknowledged that he had underestimated the challenges he would face in the community. He stated he had renewed motivation to effect more sustainable changes to maintain his freedom.

The respondent described his overall progress on parole as ‘alright’ but stated that he ‘should have done better’. He denied that he had used drugs or attempted to conceal drug use through diluted urine samples but acknowledged that he had not appreciated the potential consequences of the urinalysis results on the parole order. He acknowledged being late for curfew a few times, but denied it was intentional.

Ms Chan did not ask detailed questions about the then outstanding charge of affray, but the respondent stated that he would plead not guilty. He gave a version of events which Ms Chan noted was inconsistent with the details outlined in the police documents.

The respondent stated that he did not like the prospect of a SO. He articulated plans to resolve the outstanding charge of affray, secure his release and live pro-socially in the community.

Ms Chan then gave her clinical opinion based on the presentation of the respondent. She stated that he demonstrated limited insight into his role or contribution to his recent adverse life events and circumstances. He described his repeated transgressions of the parole order as progress that was ‘alright’ and had a distorted perception of what success on parole was. She stated he had a ‘pervasive lack of consequential thinking and a failure to understand or appreciate the seriousness of his actions’.[30] Ms Chan stated that there had been no changes to his understanding or insight regarding his offending behaviour since her first report.
[30]Second Chan report, [23].

Ms Chan then detailed an updated risk assessment for violent offending. She noted no changes to the risk factors of the HCR-20 or PCL-R and therefore was of the opinion that the respondent continued to represent a high risk of violent offending. There was no change to the likely risk scenario as detailed in para 102(b) above.

Ms Chan stated that she remained of the opinion that only after a period of sustained treatment readiness and demonstrated progress against objectively determined goals should the respondent engage in a further period of offence specific treatment with a trained psychologist. She further stated that ongoing drug treatment was also required. In reaching that conclusion she noted that it was ‘significant’ that the respondent then faced an outstanding charge of affray. After noting the seriousness of the violent incident, she wrote:

Irrespective of [the respondent’s] level of culpability on this occasion, his presence during an incident in which serious violence was perpetrated and his own acknowledgment during the assessment interview that he under estimated the challenges of community life and appropriate standards of behaviour, strongly indicates that he is not currently in the maintenance phase of making prosocial changes.[31]

[31]Second Chan report, [32].

Ms Chan then addressed the matters mandated by s 269(1) of the Act. Her opinion remained unchanged from her first report.

Turning to answer the four specific questions asked of her, Ms Chan stated that there was compelling evidence that both custodial and community based settings have been inadequate in addressing or containing the respondent’s identified risks. She noted that her knowledge of the Rivergum Residential Treatment Centre was gained from information given by Mr Mollica. She said it was designed to protect the community and facilitate a reduction in recidivism amongst individuals assessed as posing an ‘unacceptable risk‘ to the community through ‘short-term intensive treatment delivered within a secure and supervised facility’.[32] She opined that Rivergum ‘could be an ideal and optimal environment’[33] for the respondent to address his outstanding criminogenic needs and, ultimately, reduce his risk of violence.
[32]Second Chan report, [46].
[33]Second Chan report, [46].

Ms Chan stated that the therapeutic operating philosophy of Rivergum was underpinned by evidence and international best practice for the treatment of high-risk offenders with personality disorders. She noted the three phase treatment protocol. Ms Chan stated that the respondent would benefit from participation in its treatment program and that such participation would reduce his overall risk profile. Finally, Ms Chan did not offer any other appropriate treatment alternative as she considered Rivergum to be appropriate.

Viva voce Evidence of Rachel Chan

After detailing her qualifications and experience, Ms Chan was asked questions about the HCR-20 assessment she performed on the respondent.

She explained that the tool encourages the assessor to look for the presence, partial presence or absence of the 20 risk factors that are correlated with violent recidivism. Information from the offender’s history is corroborated with information from the offender gained during interview. The assessor then uses their clinical judgment, guided by the tool, to assign a weighting and a risk category.

Ms Chan was then asked about the ten historical HCR factors and her finding of definite evidence for the presence of eight of them in the respondent.

She stated that the first, ‘history of problems with violence’ was clearly met. The respondent has a longstanding history of violence which is highly relevant to his risk of re-offending. The second ‘history of problems with antisocial behaviour’ was also met by the respondent’s history of not abiding by prosocial norms and rules. The third factor ‘history of problems with relationships’ refers to both intimate relationships and others. Ms Chan stated that she looked predominantly at the respondent’s non-intimate relationships, particularly his long history of associating with antisocial peers. She said that there was also some concern about the ameliorating pro-social and protective influence of his family. The fourth factor, ‘history of problems with employment’ was relevant because although the respondent had demonstrated some ability to obtain employment, he had difficulty maintaining it, including through issues with drugs. Ms Chan stated that she considered the respondent’s employment both in the community and in custody. The fifth factor ‘history of problems with substance abuse’ was, given the longevity of the respondent’s polysubstance abuse, a very significant risk factor. The sixth factor, ‘history of problems with major mental disorder’ was not relevant. The seventh factor, ‘history of problems with personality disorder’ was relevant. Although the respondent did not fulfil the full criteria for a personality disorder, there was evidence of maladaptive personality traits. The eighth factor ‘history of problems with traumatic experiences’ was not relevant. The ninth factor ‘history of problems with violent attitudes’ was present. Ms Chan said that this item needed to be assessed based on inferences drawn by the assessor. She did so by looking at the respondent’s history of violence and the level of permissiveness in his behaviour when he will use violence. She also considered treatment received by the respondent, but said that there was concern about the respondent’s ongoing criminal and violent attitude. The tenth factor, ‘history of problems with treatment and supervision response’ considered the respondent’s past compliance with community based orders as well as custodial orders. While noting that the respondent turned up to treatment programs, his responsiveness was questionable.

Turning to the five clinical factors, Ms Chan was asked only about the two she identified as relevant to the respondent. They were ‘problems with insight’ and ‘recent problems with treatment and supervision’. Ms Chan reiterated her written opinion that the respondent had not understood and internalised the learnings from his participation in treatment programs. She noted that within the last six months he had been found in possession of drugs and contraband. She also noted that he had been in breach of his parole order. Ms Chan stated that the reasons for the breach were immaterial.

Ms Chan was then asked about the risk management factors of the HCR-20. She had found evidence for all five factors. The first ‘future problems with professional services and plans’ was met because the respondent did not have any plans beyond wanting to return to his family and pursue his clothing business. The second, ‘future problems with living situation’ was ‘a potentially relevant factor’ because although his desire to return to his family was well-intentioned, there were concerns that he would be living in the same environment that existed at the time of the index offence and concerns about that environment not being sufficiently protective of a prosocial lifestyle. The third ‘future problems with personal support’ refers to an individual’s immediate network. Ms Chan had stated in her report that the respondent’s support network may not have had a negative impact on his psychological and social adjustment, but its collective influence might be inadequate when balanced against his high-risk status. She explained this comment by stating that the respondent would require a network of people who could challenge his problematic behaviour and keep him on the straight and narrow. The fourth ‘future problems with treatment or supervision response’ was met because ‘it went without saying’ that the respondent’s history meant that it was likely that there would be future problems. The final factor, ‘future stress and/or coping’ looks at an individual’s ability to respond appropriately to stress and difficult events. Ms Chan expressed concerns that, given the respondent’s history, he may be compromised in this area.

In relation to the three domains of the HCR-20, Ms Chan stated that the historical factors were the most significant as past behaviour is the best predictor of future behaviour.

Ms Chan was then asked about the difference in clinical opinion between her and Mr Cummins as to the risk profile produced by the HCR-20. She said that the difference pertained to the presence and weighting of the risk factors.

Ms Chan was then asked about the PCL-R. She said it was a tool widely used in forensic assessment, encouraging the assessor to look for the presence or absence of 20 risk factors. It looks at behaviour across an individual’s lifespan. Those factors are considered to be evidence of a prototypical psychopath. She said that Mr Cummins, who had also administered the PCL-R, arrived at a lower score, but did not identify the particular items he had endorsed. It was therefore difficult for her to comment as to the specific consensus and difference in their assessment. She was also unsure if Mr Cummins had had access to the depth of material she had considered.

Ms Chan was asked about another tool known as the Violence Risk Scale (‘VRS’) and how it compared to the HCR-20. She said the VRS was an actuarial risk assessment tool whereas the HCR-20 was a tool of structured professional judgment. She said that there should be a correlation between the scores obtained if both are properly administered.

When asked why she administered the PDS and DASS, Ms Chan stated that the PDS is a commonly used psychometric tool administered by self-questionnaire. It produces a profile of whether or not an individual engages in positive impression management. It helps an assessor determine how to value information obtained in an interview. She said that the respondent desired to portray himself in an overly favourable light. Ms Chan said that Mr Cummins made the same finding using the same tool.

Ms Chan was asked about the respondent’s observation to her in January 2021 that he had underestimated the extent to which he would enjoy his liberty and the challenges he would face in the community. She said that she thought his comments were quite sincere. She could not state how that compared to the respondent’s situation in 2014. She confirmed that she had concerns about his insight and confirmed her written opinion as to a likely scenario if the respondent engaged in future violent offending.

When asked about the impact of the charge of affray on the conclusions in her second report, Ms Chan said that she had understood that the respondent was involved in a fight with a group of other males and suffered serious injury. She said that the scenario was ‘reinforcing’ for her assessment, being from documented evidence. Having been told that the charge had been withdrawn, Ms Chan said that the withdrawal did not affect her opinion. She said the respondent was in a situation where there were a group of males who threatened and perpetrated violence. That alone was ‘significant’ for the purposes of risk management. When asked if mere presence during violence, irrespective of behaviour, was relevant to risk, Ms Chan said that if it was a one-off situation, then it was not. However, the respondent had a history of being in situations where violence was threatened and perpetrated. She noted that the respondent chose not to leave at the moment when violence was threatened. That raised concerns about the respondent’s consequential thinking.

Ms Chan was also asked about an incident on 2 February 2021 when there was an altercation between the respondent and another prisoner in which punches were thrown. She said that the fact that the respondent found himself in a situation in which either he was under attack or was the aggressor was a concern.

Ms Chan reiterated her opinion that the respondent had outstanding treatment needs in relation to drug and alcohol use but overwhelmingly he needed to address his issues with violence. While he had undertaken treatment, he had not had sufficient treatment to reduce his risk. She explained that he first needed to engage in treatment readiness, designed to get him to acknowledge that there were problems. She then said that drug treatment should run concurrently with offence specific work.

When asked if Schema therapy would be beneficial to the respondent, Ms Chan stated it would. It is therapy designed to address problematic core beliefs.

Repeating the opinion from her second report that Rivergum would be an ideal treatment program, Ms Chan said professional literature stated that 200 to 300 hours of treatment were required. The Rivergum program was prolonged, individualised and responsive. The fact that persons undergoing the program could not leave the facility unless under supervision made it immersive. Ms Chan said that there were no similar programs available in the community. Ms Chan acknowledged that there was some validity to the concern that a person who did not want to do the Rivergum program might have less effective outcomes but noted that the staff were trained to support individuals to move through initial resistance.

Ms Chan stated that parole conditions and ISO conditions were to a degree insufficient in addressing the respondent’s ongoing risk. She noted the diluted urine samples in this regard.

When asked about the adequacy of a ‘restrictive condition’[34] to deter the respondent from future violent offending, Ms Chan stated that given the respondent’s history, she was not necessarily convinced that the threat of 12 months’ imprisonment would be a particularly compelling risk management factor for him. Ms Chan was taken to her earlier written opinion as to a potential restrictive condition, which was expressed in more definite terms.[35] She stated that she maintained that opinion.
[34]The Act, s 40.
[35]The ‘Treatment and Supervision Plan of [the Respondent]’ dated 18 January 2021 annexed to the affidavit of Joseph Mollica referred to an email of 3 September 2020 authored by Ms Chan in which she stated ‘… it is my opinion that the threat or prospect of any sanction would not, in and of itself, be a significant deterrent to [the respondent] engaging in further drug use, association with anti-social peers and/or possession/use of weapons. … It is my view, therefore, based on [the respondent’s] history, that the imposition of restrictive conditions as part of a Supervision Order are unlikely to represent any greater deterrent for him, above and beyond the baseline conditions that already exist for [the respondent] and other members of the community to abide by prosocial norms and rules for behaviour and conduct.’

In cross-examination Ms Chan was asked about the weighting she gave to several risk factors of the PCL-R. She accepted that she had allocated the maximum score to ‘lack of remorse’, knowing that the respondent had pleaded guilty to the index offence and knowing that he was found by the sentencing judge to have been remorseful. Ms Chan stated that remorse and regret were different things. She stated that the factor relates to an individual’s presentation throughout their lifetime. Victim empathy and remorse can be powerful deterrents but Ms Chan did not assess the respondent’s level of regret or remorse to be sufficient to deter him from offending in the event of being in a similar situation in the future. Verbal expressions of remorse needed to be accompanied by behaviour and followed by attitudinal shifts.

Ms Chan accepted that there had been positive behavioural changes in the respondent since at least March 2020 when he was returned to a mainstream prison unit, worked as a billet and produced a substantial number of consecutive clean urine screens, but noted he was returned to custody after breaching parole as a result of his own behaviour after a relatively short time in the community.

Ms Chan was then asked about the period the respondent had been on parole and his self-assessment that his progress had been ‘alright’, which she viewed as a distorted perception of the expected standards of behaviour and evidencing limited insight. Ms Chan accepted that the notes of the APB meeting of 12 November 2020 record that the non-association and curfew conditions were discussed, before the Chair commended the respondent for his engagement and continued contact with Corrections Victoria, and also encouraged him regarding his clothing brand. The notes further recorded that the APB members appeared happy with the respondent’s progress on parole to date. Ms Chan further accepted that the respondent’s self-assessment of ‘alright’ progress was consistent with the attitude of the APB.

As to the breach of the 10:00pm curfew, the risk and compliance report of 30 October 2020 noted that on 22 October the respondent was 13 minutes late and had twice telephoned in advance of 10:00pm to explain the issue and apologise. Ms Chan accepted that in isolation that occasion showed that the respondent appreciated the seriousness of the parole conditions. As to the breach of the non-association conditions, Ms Chan accepted that the same risk and compliance report noted that the respondent had informed his case worker that he had double clicked a photograph on Instagram to show his love for an old friend, but said that they did not have contact and lived in different areas. The respondent had undertaken not to do anything similar on social media again. When asked if this demonstrated consequential thinking, Ms Chan said it evidenced the respondent’s ability to admit to wrongdoing but she would not entirely agree that it showed that the respondent was not flouting conditions or caring about consequences. She said that his parole was cancelled within a relatively short time of being granted. While only some of the behavioural incidents during the parole period contributed to the cancellation, any breach of parole is a significant risk indicator.

Ms Chan was then asked about the diluted urine screens. She accepted that the respondent had submitted 11 screens in total, five of which were diluted. She accepted that the diluted screens were not positive evidence of drug use.

When asked about the withdrawal of the affray charge having no impact on her opinion as to the respondent’s risk, Ms Chan said that it was the culmination of different incidents that contributed to her conclusion that the respondent was not currently in the maintenance phase of making prosocial changes, but that the charge was one of the contributors. She accepted that the respondent told her that his presence at the scene was opportunistic. She did not accept that the respondent’s behaviour in not responding with violence when confronted with violence was demonstrative of the ameliorating of his risk level. She said the respondent’s behaviour had some potential impact but was insufficient to reduce his high-risk status. It was suggested that the situation that gave rise to the affray charge was exactly the risk scenario posited by Ms Chan as future violent offending and the fact that the respondent did not respond with violence was relevant to his ability to self-regulate. With respect to that occasion, Ms Chan accepted that she would not dispute that suggestion.

Returning to the issue of remorse vis-à-vis the PCL-R, Ms Chan said that she considered prior offending as well as the respondent’s index offending. She accepted that the 2011 offending was accompanied by heavy methylamphetamine use at the time the respondent was 20 years of age. She stated that the PCL-R does not explicitly factor in maturity levels but it does encourage the assessor to look at a pattern of behaviour over time.

Ms Chan accepted that she gave the respondent the maximum score on the PCL-R for ‘lack of empathy’. She also accepted that he had demonstrated some empathy for the family of the victim of the index offence. She said that the maximum score did not mean that a person had no capacity for empathy. Rather it indicated that the respondent had concerning attitudes and beliefs about empathy.

When asked about the ‘irresponsibility’ factor of the PCL-R, Ms Chan accepted that the respondent had shown considerable loyalty and commitment to his family and had a history, albeit limited, of work in the community.

Ms Chan was then cross-examined about her HCR-20 assessment. She accepted that she had endorsed eight historical factors whereas Mr Cummins had only endorsed six. The two factors not endorsed by Mr Cummins concerned relationships and employment.

Ms Chan accepted that the respondent had no history of interpersonal violence in any intimate relationships and that the relationship he had recently commenced with a gainfully employed, prosocial young woman would be a factor she would now consider as relevant. Ms Chan stated that it was not possible to say that the relationship was a protective factor as any protective effect would need to be demonstrated over time. Ms Chan accepted that a non-association condition vis-à-vis antisocial peers potentially mitigates risk but it was an external risk management strategy rather than something undertaken voluntarily by the respondent. Ms Chan accepted that the respondent was close to his mother and sister, both of whom had moved out of their home to allow the respondent to return. She said that it demonstrated support for the respondent but the concern was about the quality of that support in the longer term. Ms Chan stated that she had never specifically recommended that the respondent not live with his mother and sister.

Ms Chan stated that anyone who was a high risk of recidivism would need to demonstrate pro-social change over a long time, probably decades, before it could be considered that the risk was reduced to moderate.

With respect to employment, Ms Chan accepted that the respondent had registered his business ‘RA’, had an ABN and social media platform and that these steps are a demonstration of innovation and motivation on his part. She said it was early days but the initial signs were promising. But he had a patchy history of work in the community and had expressed a desire not to work while incarcerated.

Ms Chan was then asked about the two HCR-20 clinical factors she endorsed. She said that even though the respondent had demonstrated some insight and compliance recently it did not cause her to change her endorsement or weighting of those factors.

Ms Chan accepted that she had endorsed all five future risk factors whereas Mr Cummins had only endorsed two. Ms Chan accepted that the address at which the respondent is currently living is not the same as that at the time of the index offence and he is not in any event now living with his mother and sister. Further, she accepted that the tension between the respondent and his father ceased following his father’s death. She said that the respondent has only been in the community a short time and she had no information as to his progress. She added that living on his own after a significant period in custody potentially presented its own risks.

As to the respondent’s history of drug use in custody, Ms Chan accepted that drug use and non-compliance were common amongst the prison population but said that did not make it less concerning in terms of risk. She accepted that the death of the respondent’s father in 2017 was a great stress and that the respondent did not have access to grief counselling until late 2018. Ms Chan accepted that the respondent’s increased compliance in custody since March 2020 demonstrated better and greater coping skills. Further, the respondent was not aggressive or hostile in the face of the application for the SO. Ms Chan said that despite these recent examples, the respondent had a long history of maladaptive coping and one could not judge risk on a positive turnaround within 12 months.

When asked about certain factors relevant to the SAPROF test, Ms Chan stated that the respondent’s future life goals appeared superficial in nature. Ms Chan clarified that she did not mean that starting a business and a family were superficial but rather that the plans for the business were superficial. She agreed that if there was evidence of the plans being progressed then those goals could be considered tangible and worthwhile. Ms Chan accepted that the respondent’s maintenance of his fitness was also a positive matter but it remained to be seen whether it was protective.

Ms Chan said that the personality tests administered to the respondent by Mr Cummins were not of significant assistance in determining risk. They were relevant in mental health and psychological assessments. Similarly, Ms Chan said that two psychological tests administered by Mr Cummins – the Beck Depression Inventory and the Trauma Symptom Inventory 2 were not of assistance in risk assessment.

Ms Chan was then taken to the table that appeared in her first report concerning the respondent’s formal custodial incident history. She accepted that a number of the incidents had an unknown outcome. She did not agree that that indicated the respondent to be blameless because it was not uncommon for instances of non-compliance to be resolved in a manner that did not result in the recording of an outcome.

Ms Chan was asked about the treatment undertaken by the respondent. It was suggested that he had already done in excess of 200 to 300 hours. Ms Chan said that the respondent would need to complete an equivalent amount of offence specific treatment and most of the treatment he had previously undertaken was not of that variety. She agreed that the respondent had undertaken those programs voluntarily. Ms Chan acknowledged that the completion report for the RUSH program recorded him as having been motivated and demonstrating a high level of understanding and good insight into his need to engage. Ms Chan accepted that the LEGGO completion report was in similar terms. Ms Chan further accepted that the report about his individual treatment recorded his motivation, engagement and insight.

Ms Chan accepted the possibility that the respondent’s ambivalence to the suggestion that he has a problem might be due to the fact that he had already completed many programs. She added that the assessment was not based upon the respondent’s belief but on the opinion of objective, professional assessors. She accepted that the respondent has benefited from the programs but the remaining question was whether he has benefited sufficiently to reduce his risk. She also accepted that the period when the respondent was released was particularly challenging for him and that the measures made in response to the COVID-19 pandemic made it even more so.

Ms Chan accepted that in her first report she stated that the respondent would benefit from individualised treatment rather than group treatment, but added that there were practical considerations at play, particularly the absence of any community based non-Corrections offence specific programs. That meant that there was a default to individual treatment as it is more readily accessible. She stated that the ‘group readiness program’ outlined by Mr Mollica would be a ‘perfect match’ for the respondent as treatment readiness is necessary for someone who is reluctant to acknowledge a problem.

Ms Chan accepted that in her first report she was of the opinion that the risk posed by the respondent could be managed on a SO in the community. She stated that when she wrote her second report recommending the respondent go to Rivergum, his parole had been cancelled and he had been involved in a violent altercation in custody. She therefore had concerns about his ability to be managed in the community without reoffending. Ms Chan agreed that it was not clinically necessary for the respondent to be placed in Rivergum to reduce his risk. She said it depended on the ability of the services involved in his case to manage his risk in the community. Ms Chan agreed that during the respondent’s period on parole there had been little by way of treatment established for him aside from supervision and two phone calls, over six weeks apart, with a drug and alcohol counsellor.

Ms Chan states and Mr Cummins agrees, in general terms, that any future violent offending is likely to involve the respondent using violence towards another or others in situations where he perceives he has been disrespected or threatened or he perceives the need to protect those to whom he is loyal. The violence is likely to be direct physical violence and is likely to involve the use of weapons.

Given the past criminal history of the respondent, I accept that evidence.

Turning to the analysis of the competing psychological evidence in determining the likelihood of that risk eventuating, for numerous reasons, I prefer the evidence of Mr Cummins.

First, Ms Chan’s experience of 20 years in assessing violent offenders (and sexual offenders) is neither more nor less relevant that Mr Cummins’ experience of 30 years of forensic and clinical psychology which has included the assessment of violent offenders. In any event, the difference in their opinion arises from the administration and interpretation of psychological assessment tools. They both have extensive experience of the HCR-20 and PCL-R.

Second, and similarly, the issue of whether a report is peer reviewed or not is of little moment in this context. The reviewer was not party to the interviews with the respondent. There is no evidence before the Court by which the peer review process can be evaluated. It is not clear whether the reviewer read all of the documentation or only the report. The notes and comments (if any) of the reviewer were not provided. From Ms Chan’s evidence, it appears that the review process involved discussing the matter with the principal psychologist and other colleagues at SALTIE and ‘ensuring’ that the report was peer reviewed.

Third, I do not consider the 2012 VRS assessment of the respondent as being ‘high risk’ to be corroborative of Ms Chan’s assessment. This assessment was conducted when the respondent was aged 22 years. Levels of maturity have the potential to change significantly between that age and his current age of 30 years. Further, Mr Cummins’ evidence that the VRS was a risk-assessment tool used internally by corrective services and is not recommended for clinical use was not challenged. Beyond Ms Chan’s brief explanation that the VRS is an actuarial risk assessment tool with a list of 20 risk factors that are assigned numerical values which, when tallied, correlate with a pre-designated risk category, the domains and validity scales of the tool were not explained. And, the evidentiary value of this prior assessment must be assessed in concert with the other prior, but more recent assessment of Carla Lechner in 2015, that found the respondent was a moderate risk of future violent offending.

Fourth, the evidence and opinions of Ms Chan were, on occasion, rigid and lacking in nuance. This may be illustrated by the following examples.

(a)Ms Chan described the respondent’s self-report of his progress on parole as ‘alright’ but ‘should have done better’ as being illustrative of his distorted perception of appropriate standards of behaviour and limited insight. Despite his ultimate return to prison, ‘alright’ as opposed to ‘good’ is an apt descriptor, especially when coupled with a candid acknowledgment by the respondent that he found the transition to the community harder than he expected. It is to be noted that the non-association and curfew breaches during this period were minor, accepted as being so by the APB, and that he was commended on his engagement and progress after a month. That the affray charge was withdrawn and the urinalysis issue concerned dilution rather than positive results is also relevant. The respondent’s progress, as a serious violent offender, was ‘alright’ given that he did not commit any crimes of violence.
(b)Ms Chan’s opinion that, (almost) universally, meaningful change could only be demonstrated by a person at serious risk of future violent offending over decades is difficult to accept. The evidence of Mr Cummins that the North American White Paper said to found this opinion does not in fact support it was not challenged in cross-examination. At the same time, Ms Chan’s support for the two year Rivergum program indicates a belief that some meaningful change in risk profile is achievable in a relatively short time frame under circumstances that afford little opportunity for self-directed demonstration of change in the community. I am of the view that while demonstrated change as to a risk profile obviously cannot occur instantaneously, as a matter of logic the variables of individual cases must influence the period over which a pattern of pro-social behaviour could be determined.
(c)In this respect, Ms Chan described any recent example of pro-social behaviour by the respondent, such as him demonstrating consequential thinking by not participating in the incident that founded the now withdrawn charge of affray, as an isolated example from which no conclusion of change could be drawn. Whereas that same single example was characterised as confirming the pattern of his aggression. After extensive cross-examination in relation to this incident, Ms Chan conceded that this was ‘potential evidence’ of the respondent’s ability to self-regulate and avoid the use of violence.
(d)The 2 February 2021 incident, where the respondent is seen to throw punches in a physical altercation with another prisoner in custody, was described by Ms Chan as ‘just another incident … which adds further weight to the concerns about violent risk.’ On my review of the CCTV footage, it is unclear whether the respondent was the instigator of the incident. Ms Chan gave evidence that she would have liked to see the respondent ‘walking away or running away or trying to alert authorities’ to demonstrate changed behaviour. She did not canvass any other conclusions that could reasonably have been drawn from the limited video footage, or make an attempt to acknowledge the complexities of the prison environment. It was unclear from the footage whether the respondent had the physical option to ‘walk away’ or whether guards were close enough when the incident started.
(e)Ms Chan expressed an opinion that the respondent had a lack of remorse and empathy for others, including for the victim of the index offence. In attributing the maximum score to these fields of the PCL-R, Ms Chan gave evidence that she considered the respondent’s pattern of behaviour over his entire lifetime. While Ms Chan took into account the respondent’s expressed remorse for the index offending (acknowledged by the sentencing judge as genuine), she noted that the respondent then continued to ‘disregard rules and regulations … and potentially place himself in dangerous situations where [violent offending] could occur again’ as evidence of his ongoing pattern of violent behaviour. The respondent’s compliance with the ISO has in large part been adequate.[41] His breaches of the earlier parole were, contextually, minor. The reference to placing himself in ‘potentially dangerous situations’ must refer to the incidents of 14 December 2020 and 2 February 2021. The former shows the respondent resisting violence in a situation of physical confrontation; the latter occurred when he was in a custodial setting with all its known complexities. The decision to attribute the maximum score in these fields is illustrative of Ms Chan’s minimising of the positive steps taken by the respondent as part of his lifetime pattern of behaviour.

[41]The two documented drug infractions are discussed below.

Fifth, the basis for two of Ms Chan’s opinions remains unclear. These relate to the description of the respondent’s mother and sister as being other than pro-social influences and her opinion that Rivergum ‘could be an ideal and optimal environment’ for the respondent.

(a)While Ms Chan never specifically recommended that the respondent not live with his mother and sister, she expressed the concern, after a decision had been made that he not do so, that his family did not provide an ameliorating pro-social and protective influence upon him. This opinion is based upon the fact that the respondent was living at home with his sister and mother (and now deceased father) at the time of the index offence and that this living arrangement was insufficient to prevent him from offending. This sophistry passes responsibility for the respondent’s actions to others. A person may live with their family, who deeply and obviously disapprove of criminal and other anti-social behaviour, but still offend. A pro-social influence is not the equivalent of a guarantor of pro-social behaviour. Nor is it limited to those who provide counselling, treatment or correction. There is nothing in the evidence to suggest that the respondent’s mother and sister encouraged or promoted the respondent towards his previous criminal behaviour. Since the respondent’s release from custody they have demonstrated their support for him in moving from the family home. In the absence of the respondent’s father and in a different physical location, the dynamic of the house would not, in any event, be the same as at the time of the index offending. I do not accept that these two women are not pro-social and protective influences on the respondent. Further Ms Chan states, paradoxically, that there are risks in the respondent living alone after his years in the custodial environment.
(b)Ms Chan was originally of the view, in the first Chan report, that the respondent should have individual therapeutic treatment and individual offence specific treatment to reduce his risk of violent reoffending. By the second Chan report, when specifically asked about placing the respondent in Rivergum, she stated that it was optimal, but did not address how the group based approach of its programs (albeit tailored to each individual participant) sat with her earlier opinion that the respondent was best suited to individual treatment. When cross-examined as to this issue, Ms Chan’s answer seemed to suggest that the earlier opinion was as a result of the absence of any community based offence specific programs which meant that individual treatment was more readily accessible in the community. But, if ‘practical considerations’ rather than ‘optimal’ treatment were the basis of her first expressed opinion, it is unusual that this was not directly addressed. And Ms Chan agreed in cross-examination that the placement of the respondent at Rivergum was not clinically necessary to reduce his risk of violent reoffending.

That I prefer the view of Mr Cummins as to the degree of risk presented by the respondent does not, of course, result in a rejection of all of the evidence of Ms Chan.

And, as noted above, that I accept the evidence of Mr Cummins that the respondent presents a moderate risk of future violent offending does not determine whether he is an unacceptable risk of committing a serious violence offence if a SO is not made and he is in the community.

On all of the evidence, the factors most relevant to the degree of risk posed by the respondent are drug usage, his history of violence and his associates.

Ms Chan viewed the respondent’s unwillingness to engage in further drug counselling as evidence of his lack of insight into his issues. Mr Cummins viewed it as a reasonable response to current circumstances.

The use of steroids in March 2021 and buprenorphine in July 2021 are matters of concern. They are examples of the respondent failing to both appreciate the consequences of his actions and conform to acceptable standards of behaviour. The ongoing diluted urine samples are similarly concerning.

That said, the respondent has been subject to many directions for urinalysis in the latter part of his time in custody, during the period in which he was on parole and since the commencement of the ISO. There is no evidence to suggest that he has used methylamphetamine at all or regularly taken steroids or buprenorphine. And there is no suggestion that on the limited occasions when he consumed these drugs, the respondent also engaged in violence or other anti-social or criminal behaviour or was associating with anti-social peers.

The respondent’s criminal history of violence is notable. I accept the evidence that the past behaviour of the respondent is, from a psychological perspective, the best indicator of his future conduct.

Nonetheless, the respondent was a much younger and less mature person when he committed his past crimes of violence. The two instances of offending occurred in 2011 and 2014 respectively. The respondent has not committed any act of serious violence in the intervening period. He has now spent a long time in custody. Mr Cummins is of the view that he is ready to make meaningful change in his life. The respondent has completed every treatment and rehabilitative program available to him. In recent years (as opposed to the earlier years) his engagement in these programs has been noted to be satisfactory.

Of the history of custodial incidents recorded in the first Chan report, six allegations of physical or verbal violence show no outcome recorded and two of verbal abuse record the imposition of a monetary fine. I do not accept that the incidents where no outcome was recorded are evidence of truth of the allegations.

The respondent has demonstrated insight into his behaviour during the index offence, saying that he could and should have found a different way of dealing with things. He has expressed remorse. Importantly, in my view, he demonstrated his ability to act on that insight during the 14 December 2020 incident which led to the now withdrawn affray charge. Finding himself unexpectedly in a situation of violence, the respondent chose to not engage. He was not armed. And, as to the 2 February 2021 incident in custody, the footage does not record who was the instigator. I accept the evidence of Mr Cummins that in custody it is not always easy for a prisoner to walk away or obtain the attention of a guard. And, as I have said, the CCTV footage does not assist in determining whether on that occasion the respondent could have done so. Further, I accept generally that the custodial environment is, if not artificial, then very different from the community experience.

Obviously the cancellation of the respondent’s parole in December 2020 is a matter of weight. It is critical that, on final analysis, the cancellation is not evidence of the respondent’s participation in violence but rather of diluted urine samples. Indeed, I consider the self-control and restraint demonstrated by the respondent during the incident of alleged affray on 14 December 2020 to be firm evidence of the respondent’s ability to resist aggressive and violent behaviour when under threat. Significantly, being threatened by others is the exact scenario posited by Ms Chan as a trigger of any likely future violent offending by the respondent. While I accept that the respondent must be able to go on resisting aggressive and violent behaviour, his actions on this occasion are evidence that he has the capacity to do so.

Of relevance are the protective influences in the respondent’s life. These include the relationships with his mother and sister and also his girlfriend. He continues to pursue his business, which on the evidence is more than a mere idea, and has been able to refrain from association with anti-social peers since being subject to the ISO.

Balancing all of these matters, I am not persuaded that the Secretary has demonstrated to a high degree of probability that the respondent is an unacceptable risk of committing a serious violence offence if a SO is not made and he is in the community.

Here, there is some moderate risk that the respondent will commit a future serious violence offence.

The likelihood of that risk materialising must be considered in combination with the magnitude of the harm that may result (and any other circumstance).[42] Ms Chan’s characterisation of the respondent’s likely future violent offending conduct is noted above. Mr Cummins agreed with that characterisation ‘in general terms’. As Ms Chan has said, the potential violence is of potential lethal severity or of potential long term psychological harm to its victims. That may be said for most ‘serious violence offences’ delineated in Schedule 2 of the Act.[43] But there is a spectrum of magnitude of potential harm even in the narrow band of crimes of violence with potentially lethal consequences.
[42]Nigro, [6].
[43]The statutory and common law offences of kidnapping aside, the defined ‘serious violence offences’ involve death or serious injury.

It follows that it cannot be the intention of the Act that any likelihood of harm of such potential magnitude will be sufficient to render the risk of its occurrence unacceptable. So, for example, if the evidence demonstrated that a person was at moderate risk of committing the offence of murder, the balancing of the likelihood of the risk materialising with the potential gravity of the harm would be different from a case in which a person was at moderate risk of committing the offence of causing serious injury (either intentionally or recklessly). And, in both cases, any other circumstances particular to the case would weigh in the discretionary decision as to whether the risk was unacceptable. The decision to be made under s 14 of the Act is not to be made by reference to a generalised scale of offending.

In this case the potential violence is potentially lethal only because the infliction of serious injury through violence is inherently so. The variables that contribute to the consequences of violence are limitless. And while I accept the likelihood that any future violence would involve direct physical violence and, based on the respondent’s history, may involve the use of weapons, I consider the former more likely than the latter. I also consider there to be other relevant factors.

There are protective factors available to the respondent (as discussed above) and he has recently demonstrated an ability to remain disengaged from violence and unarmed in a provocative situation. I also accept the evidence of Mr Cummins that the respondent, now 30 years of age, has completed numerous treatment programs and is ready to make meaningful change in his life. The respondent’s moderate risk coupled with the nature of likely future violent offending, the varying magnitude of harm that may result together with the other relevant circumstances I have outlined, do not render his risk unacceptable.

That conclusion means that it is not necessary to consider the issue of conditions attaching to any SO. However, given the manner in which the application for the ITS condition was made, I note the following.

While the Act clearly distinguishes between detention and supervision, an ITS condition amounts, in effect, to an order for detention. As was clear from the view of the facility undertaken by the Court and parties, it is surrounded by a high perimeter wall and movement throughout the campus is controlled at various security junctions. Residents are not permitted to leave. Access to the internet is severely restricted. Visits from friends and family are strictly controlled.

An ITS condition can only be imposed if the Court is satisfied that it is necessary to reduce the risk of an offender committing a serious violence offence and less restrictive means of managing the risk have been tried or considered.

The evidence relied upon by the Secretary does not meet this threshold. The evidence of Ms Chan is that residence at Rivergum is not clinically necessary to reduce the risk posed by the respondent. The highest the evidence reaches is that it ‘could be optimal’ and provides a ‘unique opportunity’ for significant, long-lasting change.

Given the restriction on the liberty of the respondent in the event that an ITS condition was made, it is understandable that the Secretary took some time to consider whether to pursue an ITS condition as part of the application for the SO. However, filing an application to vary an ISO by adding an ITS condition on a Friday afternoon in anticipation of a hearing on the following Monday morning is less than model conduct. It gave no time to the respondent, his representatives and expert witness to consider and counter the application. Further, on that day the Secretary could offer no evidence as to whether or not, in the event that an ITS condition was added to the ISO and then abandoned (either because the SO was not made or the SO was made but without an ITS condition), the exiting of the respondent from Rivergum would have been counter-productive to his rehabilitation and well-being. In this regard I note the evidence of Mr Mollica, that if an individual was exited from the Rivergum program because they refused to move beyond the readiness phase, it would be ‘problematic’ for that individual’s risk profile.

Conclusion

The application for the SO in respect of the respondent is refused.

Pursuant to s 56(b) of the Act the ISO is expired.

Non-publication order

On the basis of the unanimous evidence of Ms Chan and Mr Cummins as to the effect of publication of these proceedings upon the respondent, I 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.[44]
[44]In this judgment identifying information relating to the respondent has been anonymised.

[2021] VSC 530

27 August 2021