Secretary to the Department of Justice & Community Safety v Toller (a pseudonym)
[2019] VCC 2105
•17 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| v | |
| TREVOR TOLLER (A PSEUDONYM) | Respondent |
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| JUDGE: | HIS HONOUR JUDGE PILLAY | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 4 December 2019 | |
| DATE OF RULING: | 17 December 2019 | |
| CASE MAY BE CITED AS: | Secretary to the Department of Justice & Community Safety v Toller (a pseudonym) | |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2105 | |
REASONS FOR RULING
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Subject: Supervision Order Application
Catchwords: Supervision order – whether the respondent poses an unacceptable risk
– review period – location and alcohol monitoring
Legislation Cited: Serious Offenders Act 2018 (Vic)
Cases Cited:Secretary to the Department of Justice and Community Safety v ST [2019] VSC 722; Nigro v Secretary to the Department of Justice 41 VR 359; ARM v Secretary to the Department of Justice 29 VR 472
Ruling: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr David Grace QC | Russell Kennedy |
| For the Respondent | Mr Andrew Waters | Victoria Legal Aid |
HIS HONOUR:
1 On 4 July 2019, the applicant filed an application for a supervision order pursuant to s13(1) of the Serious Offenders Act 2018 (“the Act”). On 12 July 2019, the applicant filed an application for an interim supervision order pursuant to s46(1) of the Act.
2 An interim order was made by Her Honour Judge Gwynn of this Court on 22 August 2019.
3 The hearing in respect of the final supervision order was heard before this Court on 4 December 2019.
4 Prior to the hearing, the applicant filed material and a proposed draft order, in substantially the same form as that made in the course of the interim order save for one condition relating to curfew.
5 The respondent filed material. The respondent’s first position was that no supervision order should be made at all. Alternatively, the respondent submitted that if an order was to be made then it should be varied substantially from that proposed by the applicant. By the time the matter came to court on 4 December 2019, the following issues were before the parties:
(a) whether an order should be made at all;
(b) on the basis that an order were made then the following matters were in dispute between the parties:
(i) whether there should be monitoring with a location bracelet;
(ii) whether there should be monitoring with an alcohol detection bracelet;
(iii) the duration of any supervision order: the respondent contending that it should be at three years, and the applicant contending that it should be at five years;
(iv) the duration period for any review of the supervision order: the respondent contending it should be 18 months, and the applicant contending in submissions it should be three years – though at the time of closing the applicant conceded that it should be two years.
6 At the conclusion of the hearing on 4 December 2019, I delivered oral reasons in which I:
(a) imposed a supervision order;
(b) set the duration of the supervision order at five years;
(c) imposed a review period of two years;
(d) ordered that the respondent be subject to location and alcohol bracelet monitoring.
7 I said at the time of delivering brief oral reasons that I would provide further reasons. These are those reasons.
Background
8 The respondent has a long history of offending prior to the index offending which was the subject of his conviction in 2013 and subsequent period of imprisonment, which ultimately led to the initial supervision orders. The respondent was released from his prison term in August 2018. I will not detail every single offence prior to the 2013 index offending. However, I have set out the most relevant details of offending as this influenced my decision to impose a supervision order.
9 In 1983, the respondent was convicted of one charge of assault with weapon and one charge of unlawful assault. In 1994, he was convicted of one charge of intentionally or recklessly cause injury and sentenced to a six month Community Based Order. On 5 December 1997, the respondent was convicted of one charge of aggravated burglary, one charge of recklessly cause injury, and one charge of unlawful assault. He was sentenced to 12 months imprisonment. In 1999, he was convicted of one count of recklessly cause serious injury and sentenced to 12 months’ imprisonment.
10 On 20 August 1999, the respondent was found to have attacked a victim armed with a knife and assaulted her in the course of forcing her to withdraw money from an ATM. On 6 November 2003, the respondent was convicted of one count of recklessly cause serious injury and sentenced to eight months’ imprisonment.
11 In 2005, he was convicted of assaulting a woman by striking her about the face and stabbing her. Most relevantly in this Court on 9 June 2006, the respondent was sentenced by Her Honour Judge Lawson after a plea to one charge of recklessly cause serious injury. This occurred in circumstances where a female friend had attempted to wake him and he in turn struck her. That assault caused serious facial fractures.
12 On 1 December 2006, he was sentenced by His Honour Judge Leckie of this Court on one charge of common assault and one charge of threat to inflict serious injury. In his sentencing remarks, His Honour detailed his assault of a female friend in her home. He noted that the assault was accompanied by a threat with a knife. His Honour noted and accepted that alcohol had played a role in what had led Mr Toller[1] to these events.
[1]A pseudonym
13 The index offending in this matter came before the court and he was sentenced for it on 9 July 2013 by His Honour Judge Gucciardo. His Honour’s sentencing remarks set out in some detail the altercation that the respondent had with a resident of a unit close to his. He attended at the unit of this male by knocking on the door. Upon it being opened, he hit the gentleman about the head and then repeatedly kicked and punched him. He then grabbed him by the hair and dragged him to his bedroom where he continued hitting him. An altercation ensued during the course of which Mr Toller grabbed a knife and sliced him across the back a number of times. Mr Toller then held the knife to his chest and threatened him. He was given a total effective sentence of six years and three months and a non-parole period of four years.
14 Underpinning the respondent’s presentations to court and his plea material has been numerous psychiatric reports from forensic psychologists and psychiatrists who have assessed him at various times. For example, Dr Sullivan, in a report dated 30 June 2004,[2] noted that Mr Toller was abusing alcohol and this had led to a disinhibition on his part. Dr Sullivan commented on the fact that the respondent was capable of quite extreme violence and this was a way to make people fearful of him, such that he gained self-respect as a way to deal with his sense of anger and loss.[3]
[2]Tendered as Exhibit A7.
[3]See page 2 of the report.
15 In a report dated 10 May 2006, Dr Senadipathy, a consultant forensic psychiatrist, noted that the respondent had started abusing illicit drugs and alcohol in his teenage years and had continued taking these in large quantities. He opined that the respondent’s life was controlled by the need for drugs and abuse of alcohol, and that this led to impulsivity in his behaviour. He considered that, apart from these abuse syndromes, the respondent also had an antisocial personality disorder. He was not at all hopeful, and considered that the respondent had a very poor prognosis.
16 In a report dated 1 July 2013, Mr Cummins, a consultant clinical forensic psychologist,[4] took a history of Mr Toller taking alcohol prior to the 2010 incidents. He considered that the respondent suffered from a borderline personality disorder and confirmed that alcohol was a prime reason for his serial offending.
[4]Tendered as Exhibit A4.
17 The respondent’s current psychiatric treatment has been through the prison system and has been primarily with the Moderate Intensity Violence Intervention Program (MIVIP). In 2015, he commenced this program but did not complete it as he was not felt to be engaging appropriately. Earlier this year, the respondent entered the program again, and this time did complete it. The signs for his engagement in this program were encouraging in that he participated and appeared to focus on the fact that he had found a spiritual path that was leading away from his past behaviours.
18 I do note that there was some comment that, prior to 2019, he had declined to participate in the program on three occasions, and there was some concern by the case worker that he was participating in 2019 as he was aware that it was his year for release and his interaction with the program would impact on whether a supervision order was imposed.
19 I do particularly note that the treatment completion report noted that one of the respondent’s risks with returning to the community was using alcohol and drugs.[5] I consider this to be a pertinent issue in considering the terms of the supervision order.
[5]Tendered as Exhibit A9.
The law
20 Section 1 of the Act reads in part as follows:
“The purposes of this Act are—
(a) primarily, to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision; and
(b) secondly, to facilitate the treatment and rehabilitation of those offenders; and
…”
21 The respondent was an eligible offender for a supervision order application under s8 of the Act by virtue of the fact that he was subject to an interim supervision order.
| 22 In Secretary to the Department of Justice and Community Safety v ST,[6] a decision of His Honour Tinney J of the Supreme Court, His Honour set out the relevant legislation and current authority at paragraphs [20-34]. I will not repeat those paragraphs in total as they are well understood principles in these matters. I have however set out the leading principles from His Honour’s judgment: Unacceptable Risk 22 The term ‘unacceptable risk’ is not defined in the Act, but in the context of the now repealed Serious Sex Offenders (Detention and Supervision) Act 2004, the meaning of the term was considered by the Court of Appeal in Nigro v Secretary to the Department of Justice (‘Nigro’)… 25 The Court held: Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstances, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence.[7] 26 The Court further stated: It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence. 27 The Court in Nigro made it clear that the test of unacceptable risk: should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection.[8] Duration of the order 33 Section 19(1) of the Act provides that the period of a SO is a period not exceeding 15 years specified by the Court. In this case, the applicant sought a SO for a period of five years. |
| 34 In ARM v Secretary to the Department of Justice, the Court of Appeal considered the making of an extended supervision order under the previous Serious Sex Offenders Monitoring Act 2005. In respect of the provision of that Act dictating a 15 year maximum period for an order, the Court stated: |
[6][2019] VSC 722.
[7] Ibid at [6].
[8] Ibid at [5].
It is implicit in s 14, and both sides accepted, that if the court is not satisfied to a high degree of probability that the offender will remain likely to commit a relevant offence for the whole 15 year period referred to in s 14, the period of the order should be set at such lesser period as for which the court is satisfied to a high degree of probability that the offender will be likely to commit a relevant offence unless subjected to the program.”[9]
[9] Ibid at [13].
The evidence
23 The application was supported by evidentiary material set out by Mr Grace QC. In particular, these were numerous tendered documents: the report of Mr Simon Candlish dated 26 April 2014; the report of Dr Glowinski dated 23 September 2019; the report of Dr Neilson dated 8 October 2019; and a statement from the victim of the index offending dated 30 July 2019.
24 I need not dwell on the reports of Dr Glowinski or Dr Neilson. The main contentious material in this matter was related to Mr Candlish’s report. I will deal with specific matters in turn but, overall, Mr Candlish was of the opinion that the respondent was likely to fall into the high risk category of future violent offending, including a serious violence offence such as intentionally cause serious injury.
25 The respondent relied on a report from Dr Pandurangi dated 24 October 2019. Dr Pandurangi is a forensic psychiatrist. His opinion was:
As indicated in the risk assessment section, he presents with a high loading of historical risk factors, which is moderated by his current dynamic risk factors, so he would fall in a moderate-high category.
26 Given the significant findings of both experts as to the risk posed by the respondent without a supervision order, I find that the respondent poses an unacceptable risk within the meaning of the Act. I further consider that the imposition of a supervision order is warranted on that basis.
27 I now turn to consider each of the items in dispute in respect of the proposed terms of the order.
The length of the order
28 The evidence of Mr Candlish was that no real certainty could be had in terms of this assessment. Mr Pandurangi refused to speculate. However, Mr Candlish did give evidence to the effect that at least five years was needed to determine if there had been a genuine change in the respondent’s behaviour. Noting the antecedents of the respondent, and having regard to Mr Candlish’s evidence, I consider that the period of five years is the minimum period required in order to impose a supervision order. This constitutes a measuring of the subject’s liberty against the needs set out for the protection of the community in the introductory parts of the Act.
The review period
29 Mr Pandurangi was clear that he had only seen the respondent on one occasion and therefore was not able to estimate a necessary review period to assess a meaningful change. Mr Candlish was pressed on this issue. He gave evidence that 18 months at a minimum would need to elapse before any meaningful change could be seen in the respondent’s behaviour.
30 In closing submissions, Mr Grace made the point that it would require the Department some additional time after the review period had completed in order to prepare the necessary reports and potentially have the necessary assessments done. Mr Grace conceded that the applicant, on the basis of Mr Candlish’s evidence, would consider a two year review period appropriate. I am satisfied, given the evidence of Mr Candlish and the necessary period required to conduct examinations and provide reports, that a two year review period is appropriate.
Location and alcohol bracelet monitoring
31 As to location monitoring, I note that the respondent has at times been homeless or staying at various friends’ houses. This is one of the dynamic factors that Mr Pandurangi noted can escalate the risk of offending. More pointedly, it acts as a control on the respondent’s behaviour if he is monitored or required to be in one particular location. Given that evidence, which is not contradicted by Mr Candlish’s report, I am of the view that location monitoring is necessary and in fact aids in the rehabilitative prospects of the respondent.
32 In the same vein, I consider alcohol bracelet monitoring also necessary. It can be seen from the history of prior offending, as set out above, that alcohol has featured heavily in previous incidents of offending. Once again, the control of alcohol consumption is a dynamic factor which has assisted in controlling the behaviour of the respondent. So much was conceded by Mr Pandurangi in evidence. I consider alcohol bracelet monitoring to be a necessary condition to decrease the risk of re-offending and heighten the safety of the community.
33 For these reasons, in summation, I would make the amended orders as sought by the applicant save for altering the review period from three years to two years.
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