Secretary to the Department of Justice and Community Safety v Zach Franklyn (a pseudonym)

[2020] VCC 1045

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY

v

ZACH FRANKLYN (A PSEUDONYM)

---

JUDGE:	Judge Pillay
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2020
CASE MAY BE CITED AS:	Secretary to the Department of Justice and Community Safety v Zach Franklyn (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1045

REASONS FOR RULING
---

Subject:  Supervision Order

Catchwords:             Review of Supervision Order – whether the respondent poses an unacceptable risk – non publication order

Legislation Cited:     Serious Offenders Act 2018 (Vic)
Ruling:  Application granted

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	F Holmes	Victorian Government Solicitor’s Office
For the Respondent	P Smallwood	James Dowsley & Associates

HIS HONOUR:

1       These are short form reasons in the matter of the Secretary to the Department of Justice and Community Safety and Zach Franklyn[1]. The matter came before the court on 14 July 2020. At that time I made orders and indicated to the parties I would provide reasons shortly. These are those reasons.

[1] A pseudonym

2       The facts of the matter are not relevantly in dispute. Broadly the respondent committed the index offending on 17 September 2001. That involved kidnapping, attempted kidnapping, three counts of an indecent act with a child under 16 and false imprisonment. His initial sentence was for nine years. Since that time the respondent has been made the subject of supervision orders on numerous occasions. His first supervision order commenced on 12 May 2010. It was for 10 years. There have been approximately five further reviews of that supervision order. Importantly during this time he has been consistently reviewed by a psychologist engaged by the applicant, a Mr Wall.

3       His most recent report is dated 10 July 2020. It opines that the respondent remains a moderate to high risk of committing a further serious sex offence if he is released into the community without the assistance of the supervision order. There was no contradictory material. I accept that opinion and it forms the basis for the making of the supervision order. On this basis there was consent to the making of a supervision order broadly in the terms suggested by the applicant. There was debate over three main issues however. Those issues are as follows:

a)    The duration of the supervision order. The applicant contending it ought be 10 years. The respondent contended it should be three years.

b)    The period for review. The applicant contending it should be three years. The respondent contended it should be two years.

c) The imposition of a non-publication order pursuant to section 279 of the Serious Offenders Act 2018 (Vic). The applicant contended it neither opposed or consented to the non-publication of identity but did oppose non-publication as to location. The respondent contended that both identity and location not be published.

4       Having read the material tendered, as well as the submissions of the parties, and having heard the viva voce evidence of Mr Wall, I ordered that the duration of the supervision order be four years with review occurring at two years. I ordered the imposition of a non-publication order in respect of identity and location.

5       I make those orders for the following reasons. Exhibit A-1 was the reporting of Mr Wall from December 2019 and again in July 2020. Those reports set out in great detail the very significant progress that the respondent has made since moving to Emu Creek in 2017. Specifically that progress is in the following areas. He has not reoffended. He has engaged with all therapeutic requirements not simply at a superficial level but to such an extent that Mr Wall describes the development of his ability to discuss his fundamental sexual deviancy. Mr Wall described this as the beginnings of consolidation of positively changed behaviours. He has had no behavioural breaches of note while at Emu Creek at all. He has engaged with his mother, his aunt and his four sons on an ongoing basis. He has demonstrated an ability to visit with them and at one point contemplated living with his sons in Kangaroo Flat and becoming the carer for one son with an intellectual disability. An environmental scan deemed this unsuitable due to the potential presence of a child in an adjoining property. However this demonstrates the support from his family and his willingness to play a constructive family role. All these are positive prosocial factors. Further he has engaged with the local aboriginal community cooperative (BADAC). He has a caseworker there. That reconnection with his aboriginal identity has found its way into the work that he does with his hands at Emu Creek. For a man with such a disruptive and abusive childhood such re-connection is, in my view, incredibly important and something that must be encouraged and nurtured. In addition Mr Franklyn has commenced engagement with the local men’s shed group. This is similarly positive.

6       Mr Wall was encouraged by all these factors to consider that there were substantially more pro social supports available to Mr Franklyn then was previously the case. It is particularly important that his reconnection with the aboriginal community and the men’s shed provide assertive voices in his life to remind him of boundaries given Mr Wall had concern that his family had tended to downplay Mr Franklyn’s problems and behaviours.

7       Mr Wall considered the major issue to be the need for Mr Franklyn to have a family support and awareness group process so that his family was fully aware of his offending and sexual deviancy in order to properly support him during his transition from Emu Creek. During cross-examination Mr Wall considered that such a process could occur over a period of short months. The other area that Mr Wall considered needed significant work was ongoing engagement with forensic intervention services (FIS) to expose Mr Franklyn’s sexual deviancy triggers. Mr Wall considered such would be a problem for perhaps the remainder of Mr Franklyn’s life and hence it became an issue of how it would be dealt with as he transitioned from the more supported environment of Emu Creek. To this end Mr Wall considered a supervision order itself was important but that the review dates for that supervision order were even more critical. Mr Wall opined that a five year supervision order was appropriate but a review date of around two years was necessary before proper assessment could be made of consolidation of behaviours to deal with the deviant arousal traits.

8       I accept Mr Wall’s opinion as to the review dates but I find that the duration of the supervision order should be less then he has opined. I do so because I am mindful of the significant progress that has been made by Mr Franklyn. That factor is significant given section 1 (b) of the Act which requires regard to be had to the treatment and rehabilitation of an offender. The imposition of a supervision order of less duration than that opined by Mr Wall does not derogate from the fundamental purpose of the Act which is to enhance the protection of the community. It does, in my opinion however, further the treatment and rehabilitation of Mr Franklyn by providing significant recognition of the progress that he has made. This also goes to the reasoning as to why I prefer a review date of two years rather than that suggested by the applicant, of three years.

9       It is also a reason why I have set a further mention date in this matter for 12 March 2021. This will provide an early time in which to gauge the consolidation of behaviours as a result of further FIS treatment and also to gauge whether or not the family support and awareness group process has been completed.

10      Turning to the issue of the non-publication order I find the issue determined by Mr Wall’s evidence. He made the time point that if the identity or location of Mr Franklyn was known he could become the victim of a “lynch mob” which would set back his rehabilitation and treatment. There was no countervailing evidence.