Secretary to the Department of Justice and Regulation v Fletcher [No 4]
[2017] VSC 32
•8 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 2639
IN THE MATTER of the Serious Sex Offenders (Detention and Supervision) Act 2009
and
IN THE MATTER of an application under s 28 of the Act for Renewal of a Supervision Order
and
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION | Applicant |
| v | |
| ROBIN ANGAS FLETCHER | Respondent |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 December 2016 |
DATE OF JUDGMENT: | 8 February 2017 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Regulation v Fletcher [No 4] |
MEDIUM NEUTRAL CITATION: | [2017] VSC 32 |
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PUBLIC LAW – Application by Secretary for renewal of a supervision order – Whether respondent represents an unacceptable risk of committing a relevant offence – Supervision order revoked – Serious Sex Offenders (Detention and Supervision) Act 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Grace QC | Victorian Government Solicitor |
| For the Respondent | Mr C Carr | Stary Norton Halphen |
HIS HONOUR:
Introduction
For more than a decade, Robin Angas Fletcher (for convenience, ‘RAF’) has been subject to some form of supervision order. Thus, on 29 May 2006, the Secretary to the Department of Justice obtained an extended supervision order against RAF pursuant to s 5 of the since repealed Serious Sex Offenders Monitoring Act 2005 (‘the 2005 Act’);[1] and on 8 June 2011, Weinberg JA made a supervision order (‘the order’) under s 9 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the new Act’ or ‘the Act’).[2]
[1]Secretary to the Department of Justice v Fletcher [2006] VSC 212 (Gillard J).
[2]Secretary to the Department of Justice v Fletcher [2011] VSC 335R (Weinberg JA).
Pursuant to s 28(1) of the Act, the Secretary to the Department of Justice and Regulation (‘the Secretary’) seeks the renewal of the order made by Weinberg JA.
Section 28A(1) provides that on an application for renewal under s 28, the Court may renew or revoke the order (or decide not to renew or revoke the order).
It is the Secretary’s contention that RAF poses an unacceptable risk of committing a relevant offence if the order is not renewed and RAF is in the community. The grounds set out in the Secretary’s application are:
1. The Detention and Supervision Order Progress Report authored by Dr Karen Owen dated 28 February 2016.[3]
2. The material relied upon by Dr Owen for her assessment.
3. The antecedents of [RAF].
[3]As will be seen, the Secretary also relied upon an ‘Addendum’ to that report dated 19 August 2016.
RAF submits that the order should be revoked.
For the reasons that follow, in my opinion the order should be revoked, and I will so order.
History of the proceeding
Before turning to the substance of this application, it is convenient to set out some relevant history.
On 4 March 1998, Harper J sentenced RAF to a total effective sentence of ten years’ imprisonment for various sexual offences involving two young girls, including three counts of committing an indecent act with a child under the age of 16 years; one count of sexual penetration with a person between 10 and 16 years; and one count of entering into an agreement for the provision of sexual services by a child.[4] His Honour fixed a non-parole period of eight years.
[4]RAF was also sentenced to be imprisoned for seven years on a charge of attempting to pervert the course of justice.
RAF was not granted parole at the expiration of eight years. And although a decision was apparently made early in 2006 to grant parole, that decision was revoked within a matter of weeks because of a number of letters that RAF had written to people residing in Ghana in West Africa containing matters of concern to the authorities.[5] In the ordinary course, RAF would have been released unconditionally upon completion of his head sentence on 12 June 2006.
[5]See Secretary to the Department of Justice v Fletcher [2006] VSC 212, [9] (Gillard J); Secretary to the Department of Justice v Fletcher [2010] VSC 170, [2], [53], [54], [64]–[66], [126] (Bongiorno JA).
On 29 May 2006, however, Gillard J made an extended supervision order under s 5 of the 2005 Act. That order was to commence on 12 June 2006, and to remain in force for five years. Gillard J directed that the latest date by which the first review of the order — under Division 3 Part II of the 2005 Act — had to be undertaken was 11 June 2009.[6]
[6]Secretary to the Department of Justice v Fletcher [2006] VSC 212, [18].
In December 2007, RAF made application under s 21(3) of the 2005 Act for a review of the extended supervision order made by Gillard J; and on 23 June 2008, Harper J gave leave to review the order.[7]
[7]Secretary, Department of Justice v Fletcher (No 3) [2008] VSC 217 (Harper J).
On 30 April 2010, pursuant to s 11 of the 2005 Act, Bongiorno JA ordered that the extended supervision order made on 29 May 2006 ‘not be revoked but continue, according to its terms, until its expiry on 12 June 2011’.[8]
[8]Secretary to the Department of Justice v Fletcher [2010] VSC 170, [130] (Bongiorno JA). His Honour’s reasons contain a detailed and helpful summary of RAF’s history and antecedents: [58]–[78].
The 2005 Act was repealed on 1 January 2010.[9] By virtue of clause 5 of Schedule 2 of the new Act, Division 5 of Part 2 (that is, ss 28 to 32) of the new Act applies to the renewal of an extended supervision order as if it were a supervision order under the new Act. The Court may thus make a renewed supervision order under that Division in respect of the earlier extended supervision order.
[9]Serious Sex Offenders (Detention and Supervision) Act 2009, s 200.
By an application filed on 12 October 2010, the Secretary to the Department of Justice applied under s 28 of the new Act for renewal of the order. On 8 June 2011, Weinberg JA granted the application, and made the order to which I earlier adverted (and which is the subject of the present application for renewal). The order made by his Honour was to commence on 12 June 2011 and remain in force for five years, and, among other things, his Honour ordered that the latest date by which the first review of the order was to be undertaken under Part 5 of the new Act was 8 June 2014.
When Weinberg JA again came to consider the matter, on 30 September 2014, his Honour declined to revoke the order.[10] Subsequently, on 16 October 2014, his Honour ordered that the order of 8 June 2011 not be revoked, and made other orders under s 73(9) of the Act. His Honour’s orders required the Secretary to apply for a review under Part 5 of the Act by no later than 31 August 2015.
[10]Secretary to the Department of Justice v Fletcher [2012] VSC 490R.
On 1 September 2015, the application for review came before me. At that time, RAF’s counsel did not dispute that the order should continue, but sought a variation of the relevant conditions. By the time the matter came back before me, the matter had largely resolved. Hence, on 24 November 2015, I ordered that the order made on 8 June 2011 not be revoked, and, under s 73(9) of the new Act, effected a variation of conditions. Apart from the ‘core’ conditions required under s 16 of the Act, many of the conditions imposed under s 17 of the Act were — as had been previous conditions — highly restrictive. Thus, for example, RAF was required to reside each night at Corella Place, Ararat, and not move from that address without permission of the Adult Parole Board; and he was not permitted to leave or absent himself from that residence except under strict conditions.
On 25 May 2016, I made an interim supervision order to commence on 11 June 2016, that order to remain in force until determination of the Secretary’s application for renewal of the supervision order (but, in the absence of exceptional circumstances, for a period no longer than four months). The application for renewal of the supervision order was fixed for hearing on 5 October 2016.
As it happened, a witness whom RAF wanted to call, Professor James Ogloff, was unavailable on the fixed date, so the parties by consent sought to vacate the date fixed for hearing. Accordingly, on 5 October 2016, I made orders extending the interim supervision order that I had made on 25 May 2016, and fixed the hearing of the application for renewal of the supervision order for 15 December 2015.
Upon the hearing of the application, counsel for each of the parties agreed that the application should proceed before me in stages. First, I should consider whether the order should be renewed or revoked. Secondly — and only if I determined that the order should be renewed — I would turn to consider any suggested conditions of the renewed order.[11] In the result, I received evidence and submissions concerning the issue of renewal or revocation, and adjourned that matter for determination until today’s date. I also made an order further extending the interim supervision order that I had made on 25 May 2016 until determination of the application.
[11]Counsel for the Secretary submitted that, should I determine that the order be renewed, I should at that stage have regard to the victim submission filed pursuant to s 94 of the Act, with respect to the victim’s ‘views about any conditions to which a supervision order should be subject’ (see s 94(5) of the Act).
Legislative requirements
Section 28(3) of the Act provides that the Act applies to an application for renewal of a supervision order in the same way as it applies to an application for a supervision order under s 7.
As I have mentioned, s 28A(1) provides that on an application for renewal under s 28, the Court may renew or revoke the supervision order (or decide not to renew or revoke the supervision order).
By reason of ss 9(1), (2), (4), (5) and (6) of the Act, before renewing the supervision order, the Court (among other things) needs to be satisfied that RAF poses an unacceptable risk of committing a relevant offence[12] if the supervision order is not renewed and he is in the community. The Court must be satisfied ‘by acceptable, cogent evidence’ and ‘to a high degree of probability’ that ‘the evidence is of sufficient weight to justify the decision’. In determining whether or not RAF poses an unacceptable risk, the Court must not consider the means of managing the risk or the likely impact of the order on the respondent; and the Court may determine that RAF poses an unacceptable risk of committing a relevant offence even if the likelihood that he will commit a relevant offence is less than a likelihood of more likely than not. The burden of establishing that RAF poses an unacceptable risk of committing a relevant offence is on the Secretary.
[12]Relevant offences are set out in Schedule 1.
In Nigro,[13] the Court of Appeal (Redlich, Osborn and Priest JJA) made a number of pertinent observations concerning the approach to the task which confronts me. It was said:[14]
[13]Nigro v Secretary to the Department of Justice (2013) 41 VR 359 (‘Nigro’).
[14]Ibid 380 [75] (emphasis added).
Under the Act, the court must first determine whether there is an unacceptable risk. That is an evaluative task requiring an assessment of the degree of risk and the gravity of the harm that may eventuate and whether the imposition of restrictions upon the offender’s freedom is necessary to advance the purpose of the Act.
And later it was observed:[15]
The evaluative task in determining an ‘unacceptable risk’ necessarily involves consideration of the values accorded to liberty at common law and the values ascribed to the rights in Pt 2 of the [Charter of Human Rights and Responsibilities Act 2006]. Those considerations are intrinsic to the notion of an unacceptable risk, which requires those values to be balanced against the risk. Were it otherwise, any risk would be unacceptable. The threshold test in s 9(1) provides for the manner in which the court may strike a balance between protection of the community and the restriction of the offender’s human rights. Although the impact on the offender of the making of an order is excluded from the test, the conceptual value of individual liberty and other human rights remain to be weighed in the balance. Though the test of unacceptable risk involves no prediction of the impact of an order on the particular individual, it necessarily involves consideration of the value which is placed on liberty and other human rights. The legislative framework for s 9 contemplates that the nature of any order that is made and its effects upon the offender, including its impingement upon his rights, are matters to be taken into account when exercising the discretion under subs (7). So much was not in issue on the appeal. The legislature thus seeks to achieve a balance between the offender’s rights and the right of members of the public to be protected against the risk of the offender committing further sexual offences. When the degree of risk and its nature makes it unacceptable has been left to the courts to determine.
[15]Ibid 387 [103].
The Court made clear that the Act contemplates that some level of risk is acceptable:[16]
It is clear that the Act contemplates that some level of risk is acceptable in a democratic society that values the rights of an individual to freedom and privacy. As we have said, it involves a balancing of the nature of the risk and the likelihood of its occurrence against the fundamental value which society accords to individual liberty.[17] The risk must be of such an order and the consequences if it eventuates such as to require the individual’s liberty to be constrained in derogation of the value which society places on individual liberty.
[16]Ibid 390 [113] (emphasis added).
[17]TSL v Secretary to the Department of Justice (2006) 14 VR 109 at 113, [10] per Callaway AP; RJE v Secretary to the Department of Justice (2008) 21 VR 526 at 537, [37] per Maxwell P and Weinberg JA, at 552, [99] per Nettle JA.
The evidence
The Secretary relied on a report of Dr Karen Owen, dated 28 February 2016 (‘the first report’),[18] and an ‘Addendum’ to that report (‘the second report’), dated 19 August 2016,[19] and Dr Owen gave evidence viva voce.
[18]Exhibit A.
[19]Exhibit B.
Furthermore, the Secretary tendered two affidavits (and exhibits thereto) affirmed by Jacob Coppel, dated 10 May 2016 (‘the first affidavit’)[20] and 19 September 2016 (‘the second affidavit’).[21] I have read and had regard to those affidavits and exhibits. The exhibits to the first affidavit included the first report of Dr Owen,[22] and the source materials referred to in that report;[23] and the exhibits to the second affidavit included the second report of Dr Owen,[24] and the source material to that report.[25] It is unnecessary to set out the source materials in detail, but they included various memoranda and notes by Community Correctional Services staff, including Quarterly Review Status Reports.
[20]Exhibit C.
[21]Exhibit D.
[22]Exhibit ‘JAC-1’.
[23]Exhibit ‘JAC-2’.
[24]Also Exhibit ‘JAC-1’.
[25]Also Exhibit ‘JAC-2’.
RAF’s counsel relied on two reports of Professor James Ogloff, dated 5 August 2016[26] (‘the first report’) and 13 December 2016[27] (‘the second report’). Professor Ogloff was also called to give evidence. Counsel also tendered a report of Associate Professor Anthony Hall, dated 3 August 2016.[28]
Dr Owen’s evidence
[26]Exhibit 1.
[27]Exhibit 2.
[28]Exhibit 3.
Dr Owen had interviewed RAF on six previous occasions since early 2006 for the purpose of assessment under the Act. Her first report was based on clinical interviews conducted on 3 February 2006; 18 July 2008; 20 July 2010; 2 April 2014; 22 April 2015; and 22 January 2016. It contained material previously set out in her Extended Supervision Order Assessment Report, dated 27 February 2006; Extended Supervision Order Assessment Report, dated 13 November 2008; Detention and Supervision Order Assessment Report, dated 30 August 2010; Detention and Supervision Order Progress Report (Addendum Report), dated 23 May 2013; Detention and Supervision Order Progress Report, dated 22 April 2014; and Detention and Supervision Order Progress Report, dated 1 May 2015. Dr Owen also drew on the Community Correctional Services File (Part 12) and the Sex Offender Program File (Part 4).
In her first report, Dr Owen noted that RAF’s ‘general presentation appeared to have continued to deteriorate from the time of previous assessments’; he ‘appeared to have maintained his weight gain’ so that ‘his clothes appeared ill fitting’; and generally his ‘personal hygiene was poor with his clothes unkempt and stained’. According to Dr Owen, RAF ‘appears to have maintained his stance with the writer that he considered the writer was personally prejudiced against him’, and he ‘said that he considered the writer biased as the risk assessment had not significantly changed over time’. Dr Owen noted that in the past three interviews RAF ‘appeared significantly less grandiose in his presentation and more amenable to interactive discussion’, and this ‘was again observed at the time of current interview’. While RAF’s ‘belief system remains intact, he continues to appear meaningfully more coherent and in touch with reality than in previous interviews’. His presentation ‘was unchanged vacillating between being pleasant and cooperative with the interview process, and argumentative and passively hostile’.
Dr Owen set out a summary of the ‘index’ offence; RAF’s description of the offending; the sentence imposed; RAF’s history of offending; his psychosocial and developmental history; his education and employment history; his history of non-sexual, and intimate sexual, relationships; his psychiatric and psychological history; and his religious and spiritual history. I need not repeat what was contained in that material. Dr Owen also set out several conclusions — some of which she said were difficult to draw — under ‘Case Formulation’, and described RAF’s ‘Conduct/Progress over the period since previous assessment’ (on 1 May 2015). Again, I need not repeat that material. Dr Owen also described RAF’s ‘Cooperation with Supervision’ (including a summary of the Quarterly Review Status report of 7 April 2015, and a number of other relevant documents); ‘Community Access’; ‘Health [and] General Well Being’; ‘Accommodation’; ‘Incident Reports/Incidents of Note’; and RAF’s treatment during the operation of the order. Other than observing that I have read what Dr Owen wrote, I see no need to recapitulate that material.
In her first report, Dr Owen set out conclusions drawn from the assessment tools Static-99 and RSVP.[29] I will describe those tools in more detail when I come to discuss Professor Ogloff’s opinions. At this juncture, however, it is to be noted that Dr Owen said the following with respect to the Static-99 results:[30]
[29]Risk for Sexual Violence Protocol.
[30]Emphasis added.
153.[RAF] was assessed using this instrument at the time of the Supervision Order Assessment Reports with varying outcomes due to differences of advice provided by the authors of the Static-99, and the complexity given the unusual nature of [RAF’s] offences. In 2009 providing concurrent evidence with Professor Ogloff and Dr Sullivan in [RAF’s] Supreme Court contest (cited in Detention and Supervision Order Assessment Report dated 30th August, 2010), re-scoring of the Static-99 was done using revised 2003 coding rules which resulted in an agreed score of 3 falling into the Moderate-Low risk category.
154.Given that the Static-99 is based on historical static (unchangeable factors) in the absence of further offending [RAF’s] obtained score on the Static-99 is not subject to change. Therefore [RAF’s] obtained score of 3 does not change. With a score of 3 [RAF] is considered a Moderate-Low risk relative to other male sexual offenders.
And with respect to the RSVP, Dr Owen expressed her clinical opinion as follows:[31]
239.Based on the information derived from the RSVP, and on the basis of [RAF’s] presentation over the period of the Supervision Order, it is the writer’s clinical opinion that [RAF] currently represents a Moderate risk of sexual reoffending.
[31]Emphasis added.
Having expressed the view that RAF represents a moderate risk of sexual reoffending, Dr Owen then dealt with ‘Risk Scenarios’, and said:[32]
240.However, given his history of sexual behaviour and the diversity of [RAF’s] sexual interests and beliefs, further offending against underage male or female and/or adult male or female victims are not beyond the
realms of possibility.[33] It is likely that [RAF’s] patterns of behaviour would include establishing himself as the leader of a group or church, targeting vulnerable persons and providing counselling to them. It is noted that this is the exact scenario in which [RAF] has already established himself within the Church of Antioch, although his assertion that he will not influence others to act illegally is noted. It remains likely that [RAF’s] use of manipulation of associates to achieve his desired outcomes and his use of violence is also considered probable.241.It remains the opinion of the writer that [RAF’s] vision impairment reduces or mitigates his capacity for direct relevant reoffending therefore making the latter scenarios, which involve the influence of others, a more likely scenario.
242.Review of additional material available to the writer suggests some containment of risk over the period of the Supervision Order primarily due to apparent improvement in [RAF’s] cognitions, although the degree to which one can take [RAF] at his word should of course be treated with extreme caution. It was concluded that [RAF] represents a Moderate risk of sexual violence.
243. The primary factor that continues to contain [RAF’s] risk remains the containment achieved under the provisions of the Supervision Order.
[32]Emphasis added.
[33]Given the essential issue that the Court had to determine — a matter of which Dr Owen was well aware — this was a somewhat unhelpful observation. Without cynicism, it might be observed that very little in the realm of human sexual behaviour is beyond the realms of possibility.
Despite her conclusion that RAF presents a moderate risk of sexual offending, however, Dr Owen recommended that there be no change to the order.
For the purposes of her second report, Dr Owen had reviewed additional material, including the first report of Professor Ogloff. A comparison of that report, and Dr Owen’s own first report of 28 February 2016, revealed ‘few content differences’. Overall, the final judgment of risk of future relevant offending arrived at by both Professor Ogloff and Dr Owen is identical — moderate. (Dr Owen also expressed the opinion that RAF posed a moderate risk for non-sexual violence or serious physical harm occurring independently of a sexual assault.) She concluded:[34]
32.I remain of the opinion that [RAF] is considered to represent a Moderate risk of committing another relevant offence if released into the community and not made subject to a Supervision Order. A mechanism to provide ongoing supervision across a range of environments is necessary to assist in containment of [RAF’s] risk of reoffending and actively facilitate community re-integration.
[34]This paragraph to a large extent simply recapitulates the final paragraph of Dr Owen’s first report.
In oral evidence, Dr Owen said that she did not think that there is ‘a huge difference in opinion’ between her and Professor Ogloff (whose first report she had read). She thought that ‘there are some minor differences in terms of scoring of the RSVP but ultimately the conclusion is the same in terms of moderate risk’. Dr Owen was of the view that ‘the primary difference is the degree to which we appear to believe supervision is required in terms of [RAF’s] transition into the community’, she believing that ‘ongoing supervision is required in terms of that transition into the community’. Dr Owen expressed her concern about RAF’s unsupervised transition into the community as follows:[35]
I think the history is relatively clear in terms of his own reported capacity to influence others, and I absolutely accept that over time there has been … an ongoing deterioration, in his eyesight and his health and his mobility and they have contained to some degree his risk. But I think too, if you look back at the offending history, and as I said before, his own self-report, for whatever reason within the groups that he is engaged he … has the capacity to be quite influential and I think that in some ways may continue to provide an opportunity that leads to offending risk. Now again that may or may not be the case. I think it’s a fair conclusion based on the history and I think in the absence of supervision we don’t know if that risk will eventuate or not.
[35]Emphasis added.
Dr Owen gave evidence that RAF ‘has always been quite clear that the offending was related to his beliefs about the acceptance of his religion and that the offending was related to religious practices’. She added that over the time that RAF has been assessed, ‘he has become more articulate in stating that and in some ways less florid in the way that he relates it’. RAF, she said, ‘now gives assurances that he won’t break the law again despite holding exactly the same beliefs as he held in 2006’. The difficulty with that, Dr Owen thought, is that it is based on the premise — which she did not regard as ‘an accurate representation’ — that RAF did not know the law at the time of offending. Dr Owen testified that RAF was still associated with the Church of Antioch. (I note that, despite my invitation to provide material about the Church, however, none was forthcoming.)
The risk that RAF posed had, Dr Owen agreed, been ‘ameliorated’, so that he now posed a moderate risk of future sexual offending. The basis of that ‘amelioration’ included factors such as RAF’s ‘decrease in his health and general mobility’, since ‘they act as containment to risk’. Another such factor is that RAF is ‘much more able now than he was in 2006/2008 to articulate that his offending his [scil. was] wrong, that he understands that it’s had impact [on the victims]’. Dr Owen was, however, ‘extremely sceptical’ about the genuineness of RAF’s statements about his insights into the offending.
Under cross-examination, it became clear that Dr Owen knew little about the Church of Antioch and about what RAF’s role was in the Church. The high-water mark in her evidence with respect to the Church was, I think, her answer to the suggestion that RAF might use counselling through the Church as a vehicle for sexual predation: ‘And I think in terms of future risk scenarios, given history that that’s not a scenario that’s beyond the realms of possibility’.[36] Dr Owen also said — I think without giving her evidence on this point much in the way of mature consideration — that Church members were ‘complicit’ in enabling RAF to send inappropriate letters. Very importantly, Dr Owen agreed that she had reached the conclusion that RAF’s risk of future sexual offending was ‘moderate’; that is, the identical finding made by Professor Ogloff. Dr Owen agreed that ‘moderate risk’ is ‘a term of art used in the risk assessment community to mean the risk of the average sexual offender released from gaol’. In other words, RAF posed no greater risk of future sexual offending than any other sex offender who had completed his (or her) prison sentence and been released into the community.
Associate Professor Hall’s report
[36]See footnote 33 above.
In his report — no part of which the Secretary challenged — Associate Professor Hall stated that RAF had been his patient since 2009. RAF has ‘long-standing bilateral severe glaucoma’ and has had glaucoma surgery in the past. Associate Professor Hall reported that RAF is legally blind in both eyes; and, with his level of vision, has significant problems with the activities of daily living. RAF cannot read or drive, and is ‘unsteady’ in unfamiliar environments. His vision will not improve.
Professor Ogloff’s evidence
Professor James Ogloff, a clinical and forensic psychologist, had first assessed RAF on behalf of the Department of Justice in 2006, when RAF was originally considered for the extended supervision order. Thereafter, he assessed RAF in 2009 and 2014 on behalf of RAF’s solicitors. For the purposes of the most recent application, as I have mentioned, Professor Ogloff provided a report dated 5 August 2016 (Exhibit 1), and an addendum dated 13 December 2016 (Exhibit 2). Professor Ogloff’s overall conclusion was that RAF presents a moderate risk of engaging in future sexual offending. Significantly, Professor Ogloff explained that, taken in context, ‘this would represent the same level of risk as the majority of sex offenders who are released from custody’.
In assessing the risk presented by RAF, Professor Ogloff relied on a variety of materials, including Dr Owen’s reports of 1 May 2015, 28 February 2016 and 19 August 2016; Professor Hall’s report of 3 August 2016; and reports and notes of Ms Belinda Reber, dated 26 April 2016 and 30 June 2016. Based on his file review and clinical assessment, Professor Ogloff completed the following assessment measures:
· Static-99 and Static-99R;
· Risk for Sexual Violence Protocol (‘RSVP’);
· Psychopathy Checklist – Revised (‘PCL-R’); and
· Historical Clinical Risk Management–20 (‘HCR-20’).
Professor Ogloff reported that RAF suffers from Ehlers-Danlos Syndrome, which has produced serious physical debilitation, including heart problems and visual impairment. RAF’s visual impairment has grown considerably worse over the decade that Professor Ogloff has known him, so that he can no longer read. Assessments by psychiatrists and psychologists over the years confirm that RAF does not have a psychiatric illness, although RAF has reported having low mood and anxiety while residing — as he must, pursuant to the order — at Corella Place. Professor Ogloff said that RAF had found menacing behaviour directed at him by a notorious detainee at Corella Place ‘very, very stressful’, and that RAF felt himself to be particularly vulnerable. RAF reported a feeling of ‘hopelessness’ about his legal situation, and he had experienced a bout of serious depression. No suggestion of substance abuse has ever been raised as part of RAF’s history. RAF continues to satisfy the criteria for a diagnosis of Narcissistic Personality Disorder and presents some traits of Antisocial Personality Disorder, but does not meet the criteria for such a disorder.
With respect to the current state of the research concerning the prediction of risk, Professor Ogloff further reported as follows:[37]
… Research on the prediction of risk for future sexual offending indicates that actuarial and structured risk assessment instruments are useful for identifying the risk factors that have been found to empirically predict violence and sexual offending in populations of sexual offenders. These instruments can also be useful in assisting a clinician to provide an indication of the category of risk for sexual reoffending in which an individual is likely to fall. It is important to note that whilst the category of risk can be identified with some accuracy, we are still not at a stage where it is possible to determine with a high degree of accuracy exactly what would be an individual’s likelihood of reoffending sexually. The state of the research literature is such that we can reliably determine the extent to which an individual’s risk factors are equal to, significantly less than, or significantly greater than, other populations of sexual offenders.
Despite the limitations of the validated risk assessment measures, there is now clear evidence that structured and actuarial risk assessment measures are far more valid and reliable than mere reliance on clinical judgement. Thus, the best practice approach to sex offender risk assessment is to employ the validated risk measures and then consider their applicability to the individual case in light of the general sex offender literature.
[37]Emphasis added.
So as to provide a foundation for the evaluation of RAF’s risk level for sexual offending, Professor Ogloff used three measures: the Static-99, the Psychopathy Checklist – Revised and the RSVP. He explained that the Static-99 provides ‘an actuarial baseline of the level of risk in which an individual falls for future sex offending’; the Psychopathy Checklist – Revised is ‘a validated assessment measure that indicates the extent to which the individual displays characteristics consistent with psychopathy’ (which has been found to be strongly correlated with risk of reoffending and moderately associated with sexual reoffending); and the RSVP is ‘a structured professional judgement tool which enables the clinician to comprehensively consider the range of sexual offence risk factors in a particular case’.
In his first report, Professor Ogloff described the Static-99 as consisting of ten items. The total score on the measure ranges from 0 to 12. Generally speaking, the higher the score the offender receives, the higher the level of risk of sexual reoffending that the offender presents. The risk factors included in the risk assessment instrument are: first, the presence of prior sexual offences (not counting the ‘index’ offences); secondly, having committed a current non-sexual violent offence; thirdly, having a history of non-sexual violence; fourthly, the number of previous sentencing dates; fifthly, an age of less than 25 years old; sixthly, having male victims; seventhly, having never lived with a lover for two continuous years; eighthly, having a history of non-contact sex offences; ninthly, having unrelated victims; and lastly, having stranger victims. The instrument can be used to determine the extent to which the offender being assessed shares characteristics with offenders whose level of reoffending fell into one of four categories of risk: low (0 – 1); moderate to low (2 – 3); moderate to high (4 – 5); and high (6+).
Professor Ogloff also reported that age has generally been found in studies to be inversely related to the risk of sexual offending, and said that it is thus important to take RAF’s age into account when interpreting the Static-99 scores. He explained that RAF would receive a score of ‘-3’ for age now that he is 60 years old, so that RAF’s total score on the Static-99R would be ‘0’.[38]
[38]Static-99R is the revised version of Static-99. It is considered to provide a more accurate score since it takes into account a broader age range than did Static-99.
Importantly, in his first report, Professor Ogloff stated that research published earlier this year investigated the sexual recidivism rates associated with the Static-99R across studies published internationally, involving a total of 8,805 sexual offenders. The results revealed that, on average, 7.1 per cent of offenders with a score of ‘3’ reoffended over five years; and, for those with a score of ‘0’, the recidivism rate was 2.8 per cent. Similar — although higher — recidivism rates had been found in Victorian research for Static-99R scores. In Victoria, it was found that 8 per cent of people who scored ‘3’ reoffended over five years; and 4 per cent of those who scored ‘0’ reoffended over the same period.
According to Professor Ogloff, RAF’s total score on the unadjusted Static-99 falls into the ‘moderate to low’ category, and in the ‘low’ category on the Static-99R. This is lower than the average sexual offender, representing approximately 50 per cent of ‘the re-offence rate as the average sexual offender’.
The Static-99 and Static-99R, Professor Ogloff explained, were developed to identify the ‘static’ (that is, historical) factors that have been found to relate to a risk of sexual reoffending. Given that the Static-99 is limited in scope to past risk factors, and does not take into account changes to risk that may occur over time (save, given the advent of the Static-99R, for age), and given the limitations of the static measures, Professor Ogloff thought it important to administer the RSVP, which is an additional, more comprehensive, evaluation of RAF’s level of risk for sexual offending.
Professor Ogloff described the RSVP as ‘a structured professional judgment instrument that includes both static and dynamic (i.e., changeable) factors that have been associated with the risk of future sexual violence’. It defines sexual violence as the ‘actual, attempted, or threatened sexual contact with another person that is non-consensual and includes activities such as sexual touching, rape, obscene letters, exhibitionism and theft of fetish objects’. The RSVP was developed to assist the identification of a comprehensive range of factors related to sexual offending and to assist in the management of those factors. It comprises a set of factors that guide the clinician to consider the characteristics reliably related to risk of sexual offending.
The RSVP includes five categories of risk factors that reflect the fact that factors across a range of categories have been found to relate to risk for sexual offending. Items in the RSVP ‘reflect an amalgamation of general risk factors pertaining to offending of any nature and risk factors which have greater relevance to sexual offending specifically’. There are 22 risk factors on the RSVP, which fall into five categories: first, sexual violence history; secondly, psychological adjustment; thirdly, mental disorder; fourthly, social adjustment; and, fifthly, manageability. Risk factors are considered from three perspectives: past, present and future. Each risk factor is coded to determine whether it was present in the past, recent (that is, within the last year), and whether it is likely to be relevant to the development of management strategies in the future. Each item, across the timeframes, is then coded as being ‘fully present, partially or possibly present, or absent’.
I need not set out Professor Ogloff’s findings with respect to the five categories or with respect to the individual risk factors. In summary, however, Professor Ogloff found that RAF ‘appears to present a moderate risk of reoffending sexually based on the presence and pattern of RSVP factors’.
The ‘mental disorder’ section of the RSVP includes a section on ‘psychopathic personality disorder’. Professor Ogloff thus used the PCL-R in order to undertake an appraisal of the presence of psychopathic personality characteristics. Although the PCL-R is not designed to be a risk assessment measure, Professor Ogloff explained that it has been found ‘to correlate with recidivism and, in particular, it is one of the factors to be considered in identifying an individual’s level of risk for sex offending’. The PCL-R consists of two ‘overarching’ factors. The first of those factors includes ‘interpersonal and affective characteristics’; and the second includes ‘behavioural and criminal features’. RAF’s overall score on the PCL-R indicates that he possesses more of the features on the first part of the measure than on the second part; but his total score does not indicate that he is psychopathic.
In his second report, Professor Ogloff stated that the HCR-20 has been ‘validated to assess risk for non-sexual violence and violent offending’, and is ‘the most widely used and validated violence risk assessment tool internationally’. It is, I think, unnecessary to set out in detail what Professor Ogloff had to say about the HCR-20. It is enough to observe that he thought that although RAF ‘presents with a number of historical risk factors associated with violence, most of those factors occurred two or more decades ago’, so that his ‘level of current risk factors for non-sexual violence is low and has remained low for almost two decades’. Looking forward to a possible release to the community, RAF ‘presents with few relevant risk factors to violence’. Therefore, RAF’s ‘level of risk for non-sexual violence is low’. An ‘idiographic’ factor relevant to Professor Ogloff’s risk appraisal is the fact that RAF ‘is legally blind and quite frail’. Faced with threat from a detainee while housed at Corella Place, RAF ‘did not attempt to retaliate either physically or by trying to enlist others to use violence’.
Very significantly, Professor Ogloff described RAF’s overall risk for sexual offending as follows:[39]
97.The static variables present in [RAF’s] case, as assessed by the Static-99R score fell into the Low category. A comprehensive evaluation of the risk factors associated with sex offending using the RSVP indicates that [RAF] presents a Moderate risk of future sexual offending. Factored into this level of risk is [RAF’s] advancing age, which has led to a reduction in his risk level from that when he was offending in his 30s.
98.Taken together, it is my opinion that [RAF] presents a moderate risk of engaging in future sexual offending. Taken into context, this would represent the same level of risk as the majority of sex offenders who are released from custody.
[39]Emphasis added.
I should also set out some of the other observations contained in Professor Ogloff’s first report:[40]
[40]Emphasis added.
99. [RAF] is a 60-year-old man with a history of sexual offending stemming from offences committed against two 15-year-old girls whom he was counselling in the late 1990s when he was in his late 30s. As described in the sentencing comments, and admitted to by [RAF], the offences were depraved and shocking.
100. [RAF] does not meet the criteria for a diagnosis of a major mental illness, although she [sic.] does display low mood. He has demonstrated a degree of despair given the extended period of time he has been under a supervision order over the past eight years, having been held in restrictive environments for the duration.
…
102. [RAF] suffers from a serious physical ailment which has reduced his mobility and rendered him legally blind. He also presents some underdetermined gastrointestinal difficulties. He is an intelligent man who has, despite every obstacle including poor vision, managed to complete an honours degree in philosophy from Deakin University in 2015.
103. [RAF] presents with a growing degree of despair about his prospects for ever living free in the community. I believe the deterrent effect of his sentence and now supervision orders have been strong and if he was to be released to live in the community, he would be strongly deterred from reoffending. Indeed, he has been incarcerate [sic.] or under supervision for two decades.
…
105. It is my opinion that [RAF] presents a moderate risk of committing a sexual offence in the future. The level of supervision under which he has been subjected has managed his level of risk for reoffending sexually; however, it will only be possible to determine with certainty whether he can independently control his risk level if he was to now move to a lower level of restriction.
106. As detailed in this report, [RAF’s] sexual offence history, while involving serious offences, was limited to victimising two 15-year-old girls whom he was counselling. The offending was very serious as set out in the judge’s sentencing comments. He has attempted to explain that his offending occurred in the context of his religious beliefs. This is incredible given the nature and extent of the victimisation which extends well beyond what could be explained as being part of any religious ritual. While he still holds those views, he recognises the illegality of his behaviour and, in my view, poses a moderate risk of reoffending in a similar manner in the future.
107. Although it is my opinion that he poses a moderate risk of sexual offending at the present time, if he does return to offending, it would most likely be in a context where he violated a position of trust over a sexually mature but adolescent girl. I believe, however, that he has the intellect and skills to desist from engaging in reoffending in the future.
…
110. As described in the report, [RAF’s] offending occurred in the context of him sexually offending against adolescent girls in the context of his religious beliefs. The nature of the behaviour was clearly sadistic in nature and irrespective of his motivation for engaging in the behaviour, it was degrading to the victims. It does not appear that he is a paedophile; however, he has expressed concerning and atypical views of sexual practices with children. Factors that are relevant to his possible reoffending include sexual deviance, difficult intimate and non-intimate relationships, and some difficulties with psychological and social adjustment.
111. [RAF] is an intelligent man who has been significantly affected by the long period of incarceration he has experienced as well as eight years of being on a supervision order during which time he has essentially been detained. He fully realises the illegality of his behaviour. His offending history was limited to the current offences, which occurred when he was in his 30s. As he has aged and become increasingly debilitated visually and physically his offence risk also is diminishing. If he did reoffend, it would likely be with adolescent girls with whom he developed some relationship of authority.
112. [RAF’s] risk of sexual offending will likely continue to fall over time with his advancing age and deterioration.
113. It is my opinion that [RAF] presents a moderate risk for reoffending sexually in the future.
Submissions of the parties
Counsel for the Secretary submitted that both the evidence of Dr Owen and Professor Ogloff establishes that, if RAF reoffended, ‘the likely offence that would be committed would be an offence against an adolescent girl if an offence was committed‘. The potential harm that kind of offending behaviour may cause an ‘adolescent girl’ is ‘well-known’, and, so it was submitted, ‘there can be no debate about the grave harm that may result’. Thus, counsel argued, ‘even given the moderate nature of the risk presented’ by RAF, ‘the gravity of the consequences of [an] offence, if he were to commit one, would be an unacceptable risk for the community and would justify the making of an order’.
The existence of RAF’s ‘belief systems’ is, the Secretary’s counsel submitted, ‘the critical factor’, and ‘the one invariable in the assessment of both the assessors is that it is this belief system which provides the most difficult issue for the community potentially going forward’. Counsel submitted that despite twenty years of ‘either custody or close confinement under supervision’, RAF still intractably holds the same beliefs. There is a need for continuing supervision which justifies the renewal of the order. It was submitted that the issue of relaxation of conditions permitting RAF to live ‘in the wider community by himself or with supports’ is an issue ‘for another day’, which should not ‘infect the assessment’ that the Court is required to undertake.
Ultimately, counsel for the Secretary submitted that ‘at the end of the day’ the issue is whether all of the factors relied upon by the Secretary, ‘synthesise into an unacceptable risk’. The Secretary submitted that they do ‘for all the reasons that are contained in the various reports, that is background, the history with the offending and the matters that have been referred to in the evidence of the two eminent witnesses’.
In written submissions, counsel for RAF submitted that RAF is now 60 years of age, legally blind and physically impaired. He has been convicted of relevant offending only once in his life. That relevant offending occurred when he developed, over a considerable period, some psychological sway over the victims. Counsel submitted that the ‘peculiarity’ of RAF’s beliefs, his disability, his age, his physical presentation and his personality mean that the category of young people who might now fall under his sway is ‘a very limited one’. It is more limited by reason of RAF’s notoriety. It was submitted that the relevant offending occurred because RAF was able to pass as a legitimate counsellor, something that is no longer possible. RAF is intelligent and has the cognitive capacity to desist from offending. He has been strongly deterred from offending by the ‘aversive nature’ of the consequences of his 1996 offending, which has included a decade in gaol, and nearly as long again of supervision in gaol and ‘gaol-like’ conditions. Given his physical limitations, his blindness, and his limited history, there is no real risk of RAF spontaneously engaging in either sexual or violent offending against a stranger, and no real risk of him engaging in offending against a victim who is not under his sway. The risk of RAF offending is, it was argued, a ‘tightly constrained’ one, even in the absence of a supervision order. RAF has been forthcoming in revealing his aberrant religious beliefs. What matters, however, is not the existence of those beliefs, but whether there is persuasive contemporary evidence of a willingness to act upon them. It was submitted that there was no such evidence.
In oral submissions, RAF’s counsel relied on Professor Ogloff’s opinions. Counsel submitted that RAF ‘was a man in his late 30s when he offended’, and that the ‘one time that he has been sentenced for relevant offending in his entire 60 years was in respect of offending in his late 30s’, there being ‘no other relevant offending in his history’. It was submitted further that the relevant offending ‘occurred in quite specific circumstances’ which are ‘inherently unlikely to recur because of his notoriety, because of his physical frailty, because of his blindness’. Counsel reminded the Court of Professor Ogloff’s evidence concerning ‘the statistics’. Applying the statutory test to the facts before the Court, it ‘only permits one outcome’, that being that the Secretary has not established that RAF ‘poses an unacceptable risk’.
Analysis
Both Dr Owen and Professor Ogloff expressed the opinion that RAF presents a moderate risk of sexual offending in the future. Interpreted, the gist of that common opinion is that RAF presents the same risk of sexual reoffending as does the average sex offender released into the community. Depending upon how one views RAF’s Static-99R scores — whether ‘3’ or ‘0’ — and depending upon whether one applies international or local actuarial criteria, the implication statistically is that RAF represents a risk of sexual reoffending over five years in a range somewhere between 7.1 per cent at the higher end, or 2.8 per cent at the lower end.
At this juncture I pause to remind myself that in Nigro the Court made it clear that a risk described as ‘moderate’ will not necessarily dictate a finding that an unacceptable risk does not exist:[41]
[41]Nigro, 393 [125].
However, the Secretary rightly contended that it did not follow that where the assessment was that the level of risk was moderate and equated to the average sex offender risk, the circumstances could not in a particular case amount to an unacceptable risk. The degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, and any other matter the court considers relevant, will determine whether the risk is unacceptable.
And the Court further observed:[42]
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.
[42]Ibid 394 [130]. See also 404 [167].
Although, on the available evidence, it does not appear that RAF is a paedophile, he has expressed atypical — and extremely concerning — views of sexual practices with children. In my opinion, however, the burden of the evidence suggests that, insofar as there is a moderate risk of RAF sexually reoffending with a child, such reoffending would most likely occur in a context where he violated a position of trust with respect to a sexually mature, but adolescent, female (or females).[43] It will be remembered in this regard that RAF’s relevant history of sexual offending — whilst unambiguously serious — was limited to victimising two 15 year old females whom he was counselling. That said — and no matter his motivation for the offending — strong elements of sadism permeated RAF’s behaviour, which was utterly degrading to the victims. Bongiorno JA described the offending as follows:[44]
Between about 1990 and 1996, [RAF] offered services as a drug abuse and sexual guidance youth counsellor. He used premises in South Caulfield from which his then partner conducted another business. It was whilst engaging in these activities that he met the two young girls who became the victims of the offences to which he pleaded guilty in 1998. The offences occurred in 1996 when these two girls, aged 15 and exceptionally vulnerable as a result of their background, their behaviour and other social factors, were subjected to violent sexual acts. These acts involved their being whipped and beaten on their naked backs and buttocks with objects including a riding crop, causing pain and physical injury. In respect of one of these girls, [RAF] digitally penetrated her vagina, although later he claimed that he was adjusting her tampon so she would not suffer any extra discomfort in the course of the activity in which he was engaged. He explained his behaviour as being part of a pagan ritual, justified by his religious beliefs which he described as ‘Wiccan’. Subsequent to his arrest for these offences he sought the assistance of a fellow prisoner to have the two girls killed so that they could not give evidence against him. It was in respect of this activity that he was charged and pleaded guilty to attempting to pervert the course of justice. Both girls suffered much as a result of these offences.
[43]Compare what Dr Owen said, set out at [32] above. (See also footnote 33 above.)
[44]Secretary to the Department of Justice v Fletcher [2010] VSC 170, [61].
Thus, in my view — based principally on the opinions of Professor Ogloff and Dr Owen, and upon my own assessment of RAF’s relevant past behaviour — should RAF reoffend sexually, such offending would likely be of a sadistic and degrading nature, directed toward adolescent females in the context of a breach of trust.
Turning to the question whether RAF represents an unacceptable risk of relevant offending, as I have previously observed this Court may only renew the supervision order if satisfied ‘by acceptable, cogent evidence’ and ‘to a high degree of probability’ — the burden resting on the Secretary — that ‘the evidence is of sufficient weight to justify the decision’ that RAF poses an unacceptable risk of committing a relevant offence if the supervision order is not renewed and he is in the community. It is open to the Court to determine that RAF poses an unacceptable risk of committing a relevant offence even if the likelihood that he will commit a relevant offence is less than a likelihood of more likely than not. Principally, it is the degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, that will determine whether the risk is unacceptable. Ordinarily, the gravity of the consequences of the putative offending will be the critical factor in assessing whether that risk is ‘unacceptable’. Determining that gravity will depend upon the likely conduct in the particular case, rather than upon generalisations concerning the general nature of the type of offence in question (or the sentences usually imposed for that kind of relevant offence).
At the risk of repetition, the evidence suggests that RAF presents no greater risk of reoffending sexually than the average sex offender released into the community. Hence, in my view, the ‘degree of likelihood of the occurrence of the risk’ of RAF committing a ‘relevant offence’ is low.[45] Indeed, I regard it as far more probable than not that RAF will not commit a relevant offence if released into the community unsupervised. Quite apart from the opinions of Dr Owen and Professor Ogloff, that conclusion is supported by a variety of other factors, including RAF’s age, physical infirmity and lack of eyesight. Further, although his offending two decades ago was abhorrent, it needs to be remembered that RAF has been convicted of relevant offending only once in his life, in peculiar circumstances which are unlikely to be replicated. Moreover, RAF is intelligent and, notwithstanding that he may still hold aberrant beliefs, he has the cognitive capacity to desist from future offending. There is little doubt, in my view, that ten years’ imprisonment, together with a further decade of supervision in conditions severely curtailing his freedom, has had a strongly deterrent effect upon him.
[45]Nigro, 393 [125].
A finding that the ‘degree of likelihood of the occurrence of the risk’ of RAF committing a ‘relevant offence’ is low is not, of course, the end of the relevant inquiry, since, as s 9(5) of the Act makes plain, the Court may determine that RAF ‘poses an unacceptable risk of committing a relevant offence even if the likelihood that [he] will commit a relevant offence is less than a likelihood of more likely than not’. In the present case, therefore, it is the gravity of the consequences of the offence (or offences) which RAF is at risk of committing which must be the critical factor in the Court’s assessment of whether the risk of committing a relevant offence is ‘unacceptable’.[46]
[46]See ibid 394 [130].
Under cross-examination by counsel for the Secretary, Professor Ogloff agreed that one of the victims of RAF’s 1996 offending had committed suicide, although he did not ‘know the circumstances of that or the precipitating factors’. Professor Ogloff added, however, that from his own work with victims, the kind of offending that RAF had engaged in often has ‘a long term debilitating influence, and that would be the case here’. He also agreed that the offending could have caused the victims ‘lifelong problems’.
As I have said, should RAF reoffend sexually, the evidence justifies the view that such offending would likely be of a sadistic and degrading nature, directed toward sexually mature adolescent females in the context of a breach of trust. Although some attempt was made by counsel for the Secretary to link the suicide of one of RAF’s victims to his predations upon her, the evidence put before the Court does not justify the conclusion that there was a direct causal link between the offending and the suicide. Based on the experience of the Courts, however, it might readily be concluded that any future offending by RAF would, as Professor Ogloff put it, likely have ‘a long term debilitating influence’ on any future victim.[47] That likelihood being acknowledged, in my view it is impossible to determine with any greater precision what the severity of that debilitating influence might be, since such severity would be determined by individual factors — including the personality, character and temperament of any victim — which are impossible to predict. Thus, in my opinion, the evidence does not justify the conclusion that the possible consequences of any future relevant offending by RAF will be any greater than is generally encountered by adolescent female victims of aberrant sexual activity perpetrated by an adult male. Of course, that observation is not calculated to minimise the effect of such offending on victims, but is merely recognition of the fact that the evidence placed before me did not justify a different view.
[47]See ibid 394 [129].
It is always a serious matter for a court to make a supervision order, thereby severely curtailing a person’s freedom based not on what the person has done, but on a prediction — based, at least in part, on past behaviour — of what he or she might do.
In determining whether RAF relevantly presents an ‘unacceptable risk’, the Court must balance the values accorded to liberty at common law and the values ascribed to the rights in Part 2 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter Act’) against the putative risk. Were that not the case, any risk of RAF sexually reoffending would be unacceptable.[48]
[48]Ibid 387 [103].
The common law afforded primary importance to the right of personal security, which ‘consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation’.[49] Personal liberty was next in importance. As Blackstone expressed it:[50]
Next to personal security, the law … regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of loco-motion, of changing situation, or removing one’s person to whatever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law. …
[49]Blackstone, Commentaries on the Laws of England (1765), Book 1, 125.
[50]Ibid 130. See also Nigro, 378 [67].
With respect to personal liberty, Mason and Brennan JJ observed in Williams:[51]
The right to personal liberty is, as Fullagar J described it, ‘the most elementary and important of all common law rights’: Trobridge v Hardy ([52]). Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England ‘without sufficient cause’: Commentaries on the Laws of England (Oxford, 1765), Bk 1, pp 120–121,130–131. He warned:
‘Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities.’
[51]Williams v The Queen (1986) 161 CLR 278, 292 (citation in original).
[52](1955) 94 CLR 147, at p 152.
And in his dissenting judgment in Fardon[53] — concerned with the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) — Kirby J emphasised the importance given by the law to personal liberty:[54]
Generally speaking, in Australia, the involuntary detention of a person in custody by any agency of the state is viewed as penal or punitive in character. In Australian law, personal liberty has always been regarded as the most fundamental of rights. Self-evidently, liberty is not an absolute right. However, to deprive a person of liberty, where that person is otherwise entitled to it, is a grave step. If it is to extend for more than a very short interval, such as may properly be entrusted to officials in the Executive Government, it requires the authority of a judicial order.
These rules explain a fundamental principle that lies deep in our law. Ordinarily, it requires officers of the Executive Government, who deprive a person of liberty, to bring that person promptly before the judicial branch, for orders that authorise, or terminate, the continued detention. The social purpose behind these legal obligations is to divorce, as far as society can, the hand that would deprive the individual of liberty from the hand that authorises continued detention. The former, which normally lies in the Executive branch, is taken to be committed to the deprivation of liberty for some purpose. The latter is taken to be independent and committed only to the application in the particular case of valid laws. The operation of the writ of habeas corpus is another assurance, afforded to the judiciary, requiring the prompt legal justification of any contested deprivation of liberty. So precious does our legal system regard every moment of personal freedom. The scrutiny of a justification of the deprivation of liberty must not be perfunctory. It is a real and solemn responsibility of the judiciary, rooted in our constitutional history.
[53]Fardon v Attorney-General (Qld) (2004) 223 CLR 575.
[54]Ibid 632–3 [150]–[151] (footnotes omitted).
Consistently with the pre-eminence given to personal liberty at common law, a number of particular co-extensive human rights are given recognition in the Charter Act, including freedom of movement;[55] a right not to have privacy, family, home or correspondence unlawfully or arbitrarily interfered with;[56] a right to freedom of thought, conscience, religion and belief;[57] a right to freedom of expression;[58] and a right to liberty and security.[59]
[55]Section 12.
[56]Section 13(a).
[57]Section 14.
[58]Section 15.
[59]Section 21.
As I earlier observed,[60] despite being of the opinion that RAF represented only a moderate risk of committing another relevant offence if released into the community and not made subject to a supervision order, Dr Owen nonetheless opined that a mechanism ‘to provide ongoing supervision across a range of environments is necessary to assist in containment of [RAF’s] risk of reoffending and actively facilitate community re-integration’. I find it difficult to reconcile the opinion that RAF presents no greater risk than the average sex offender released into the community — the necessary concomitant of determining the risk to be ‘moderate’ — with the suggestion that a mechanism is necessary to provide ongoing supervision to assist in containing the risk of reoffending and to facilitate re-integration into the community. But in any event, as s 9(4) of the Act makes plain, the Court must be careful to ensure that in determining whether or not RAF poses an unacceptable risk for the purposes of s 9(1), it does ‘not consider the means of managing the risk or the likely impact of a supervision order on the offender’.[61]
[60]At [34] above.
[61]See Nigro, 406–7 [175]–[178].
RAF’s crimes were repellent. The circumstances of their commission are calculated to arouse strong emotion in the ordinary person. Plainly the offences warranted stern punishment and strong condemnation. The sole question for the Court is, however, whether the Secretary has established to a high degree of probability, by acceptable, cogent evidence, that RAF presently poses an unacceptable risk of committing a relevant offence if a supervision order is not made and he is in the community. In circumstances where RAF poses no greater risk of reoffending than the average sex offender released into the community; and where, as I have concluded, the possible consequences of any future relevant offending by RAF will be no greater than is generally experienced by adolescent female victims of aberrant sexual activity perpetrated by an adult male; I am unable to conclude that RAF poses an unacceptable risk within the meaning of s 9(1) of the Act.
The consequence of those findings is that the Court cannot renew the supervision order under consideration.
Conclusion
The supervision order made by Weinberg JA on 8 June 2011 must be revoked.
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