Secretary to the Department of Justice v AB
[2009] VCC 1132
•28 August 2009
REVISED
UNRESTRICTED
IN THE COUNTY COURT OF VICTORIA
| AT MELBOURNE | CASE NO. CR-02-016501 |
IN THE MATTER OF the Serious Sex Offenders Monitoring Act 2005 and IN THE MATTER OF an Application under s 4 of the Act for an Extended Supervision Order
| APPLICANT | The Secretary to the Department of Justice |
| RESPONDENT | AB |
| WHERE HELD | Melbourne |
| BEFORE | His Honour Judge I J K Ross |
| DATES OF HEARING | 1, 2, 3 June and 8, 9, 10 and 22 July 2009 |
| DATE OF ORDER | 28 August 2009 |
| CITATION | [2009] VCC 1132 |
REASONS DATED 16 SEPTEMBER 2009
Catchwords:
Serious Sex Offenders Monitoring Act 2005 – application for an extended supervision order – meaning of s 11 – Charter of Human Rights and Responsibilities Act 2006 – interpretative obligation in s 32 – challenge to the reliability of the assessment instruments – satisfied that offender is likely to commit a relevant offence if released in the community and not made subject to an order – duration of order and review period.
APPEARANCES:
| For the Applicant | Mr Grace QC and Ms Davidson of counsel, instructed by Russell Kennedy solicitors |
| For the Respondent | Ms Mortimer SC and Mr Moglia of counsel, instructed by Victoria Legal Aid |
INDEX
PARAGRAPHS
Executive Summary 1 - 34
1. Introduction 35 - 44
| 2. |
The Serious Sex Offenders Monitoring Regime 2.2 The practical operation of the scheme
2.2.1 General 83 - 87
2.2.2 Types of conditions on ESOs 88 - 131
2.2.3 AB’s Interim ESO 132 - 148
| 3. |
The proper construction of section 11 of the Act 3.2 Step One: Interpretation by applying the standard 181 - 238
or usual principles of construction
3.3 Step Two: Is s 11 compatible with the Charter? 239 - 270 3.4 Step Three: The ‘re-interpretation’ of s 11 271 - 287
4. The Reliability of Assessment Instruments
4.1 Introduction 288 - 291 4.2 The Relevant Instruments (i) Static 99 292 - 299 (ii) SONAR 300 - 304 (iii) Stable and Acute 305 - 313 (iv) Combining Measures 314 - 318
4.3 Assessing the Actuarial Measures 319 - 338 4.4 Conclusion 339 - 345 5. The Application 346 - 349
5.1 Assessment Report 1 350 - 368 5.2 Assessment Report 2 369 - 373 5.3 The matters in ss 8(1) and (2) 374 - 426 5.4 Conclusion 427 - 433 6. The Order
6.1 General 434 - 439 6.2 Duration of the ESO 440 - 455 6.3 The Review period 453 - 455
EXECUTIVE SUMMARY
1 The matter concerns an application by the Secretary for an Extended Supervision Order (ESO) in respect of AB.
2 The circumstances in which a court may make an ESO in respect of an offender are set out in s 11 of the Serious Sex Offenders Monitoring Act 2005 (the Act). The central issue for determination in this case is whether AB is ‘likely to commit a relevant offence if released in the community … and not made subject to an ESO’.
3 I deal first with an overview of the legislative scheme and its operation in practice before turning to consider the Charter of Human Rights and Responsibilities Act 2006 (the Charter) and the proper construction of s 11 of the Act.
4 The making of an ESO has a profound effect on the human rights of the person to whom the order is directed. ‘Monitoring’ is an understatement of the restrictions imposed on a person subject to an ESO. As Callaway AP observed in TSL v Secretary
to the Department of Justice: ‘A person subject to an extended supervision order is a
prisoner in all but name’.[1][1] (2006) 14 VR 109 at [10]
5 A review of the practical operation of the scheme shows that about half the offenders subject to an ESO are, for all practical purposes, confined within the Ararat facilities. Those offenders are subject to a curfew (between 8pm and 7am), monitored
electronically and may not leave the facilities except in the company of a Corrections in paid employment.
6 Of the 41 offenders subject to an Interim ESO or an ESO, 38 are subject to a curfew condition, 36 are subject to electronic monitoring and 39 are subject to a direction that they must reside at a particular location and must not move without the prior written consent of the Secretary.
7 It is important to bear in mind that these restrictions are being imposed in circumstances where the offenders have served the sentence imposed on them in respect of the offences they have committed. Absent the imposition of an ESO they would be entitled to their freedom.
8 The main purpose of the Charter is ‘to protect and promote human rights’ by the means set out in section 1(2)(a) – (e), namely: specifying the human rights to be protected and promoted; ensuring legislation is interpreted compatibly with human rights; making it
obligatory for all public authorities to act in a way that is compatible with human rights;
requiring statements of compatibility in respect of all Bills introduced into Parliament
and conferring jurisdiction on the Supreme Court of Victoria to make declarations of
inconsistent interpretation.9 Section 32(1) of the Charter provides that so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with the human rights set out in Part 2 of the Charter. I refer to this provision as the interpretative obligation.
10 The proper approach to s 32 involves three steps:
(i)
Ascertain the meaning of the statutory provision being interpreted, by reference to the standard of usual principles of statutory construction.
(ii)
Consider whether the meaning of the provision is ‘compatible with [the] human rights’ specified in the Charter. The question of compatibility is determined by reference to s 7(2).
(iii)
If the meaning of the provision (as ascertained by the usual principles of statutory construction) is incompatible with human rights, then, is it possible to interpret the statutory provision, consistently with its purpose, in a way that is compatible with human rights.
11 The standard or usual approach to statutory construction includes having regard to:
•Australia’s international obligations; and
• the common law proposition that fundamental rights and freedoms cannot be abrogated without ‘a clear expression of unmistakable and unambiguous intention’ (the principle of legality). 12 I refer to the practical implementation of both principles, collectively, as giving effect to a human rights focussed approach to statutory interpretation.
13 Step one of the approach set out above results in an interpretation of s 11 which may be summarised as follows:
(i) The court retains a discretion not to make an order, even if the test in s 11(1) is met. (ii) The Secretary bears the onus of proving that an offender is likely to commit a relevant’ offence. (iii) The standard of proof in respect of the test in s 11(1) is that the court be satisfied to of beyond reasonable doubt.
(iv) An offender will be ‘likely to commit a relevant offence if released in the community’ and not made subject to an ESO, if each of the following elements are met:
• there is a risk of the offender committing a relevant offence; • that risk is real and ongoing; and • that risk cannot be sensibly ignored having regard to the nature and gravity of the possible offending. (v) An offender will have a real risk of reoffending if there is an appreciable risk that he or she will reoffend. Whether there is a ‘real risk’ of reoffending in a particular case is contingent and depends on the circumstances. A determination that an offender is ‘likely’ to reoffend may be made on the basis of a threshold of more likely than not, or a lower threshold.
(vi) The threshold applicable in each case will depend on the circumstances, and in particular on the nature and gravity of the potential future offending. The more grave the offending the lower the threshold. The pattern and progression of the offender’s past offences, and in particular any escalation in offending, is also likely
to be relevant.
(vii) The range of sexual offences set out in the Schedule to the Act may be placed on a continuum in terms of their nature and gravity, from the less serious to the more serious. Offences such as possession of child pornography may be regarded as being at the lower end (relatively speaking) and offences such as rape, sexual penetration of a child and sexual offences against children and other victims who are particularly vulnerable because of, for example, their circumstances, intellectual capacity or dependency on the offender, being at the higher end. The requirement that the risk be real or appreciable places a limit on how low the threshold can go.
(viii)A risk will be ‘ongoing’ if it is a continuing, rather than a momentary or transitory risk.
(ix) A balanced approach must be taken in considering whether a real and ongoing risk of future offending is one which ‘cannot be sensibly ignored’. It involves a consideration of the nature and gravity of the possible offending and an acceptance that some level of risk should be tolerated in a society which values the human rights of all its members.
(x) In making the determination required by s 11(1) the court must have regard to any assessment report filed, any other report or evidence given by a medical expert and anything else that it considers appropriate.
(xi) The court may also have regard to whether an assessment report was made without personal examination of the offender and the extent of the offender’s cooperation in the preparation of an assessment report (including his or her reasons for any failure to cooperate).
(xii) The requirement that the court ‘have regard to’ certain matters (including any assessment report filed) means that the court must not only consider each such matter but treat them as a matter of significance in the decision making process.
14 The next step involves a consideration of whether on its proper construction, s 11 of the Act is ‘compatible with [the] human rights’ specified in the Charter. This issue is determined by reference to s 7(2) of the Charter and involves a consideration of the matters in section 7(2)(a) to (e) and whether the extent of the limitation on human rights is ‘reasonable’ and demonstrably justified.
15 The making of an ESO has a profound impact on the human rights of the person to whom the order is directed and will usually entail significant limitations on the offender’s right to freedom of movement, privacy, freedom of association, liberty and the right not to be subject to medical treatment without his or her full, free and informed consent. Contrary to the submissions put on behalf of the Respondent I am not persuaded that his right to a fair hearing has been limited by the Act.
16 The human rights of the potential victims of such offences are an important consideration to be weighed in the balance. As is the fact that the Act contains important safeguards in relation to ESOs, including:
• an ESO is imposed by a court, independent of the executive; • an ESO is subject to mandatory periodic reviews; •
an offender subject to an ESO may apply to the court for review of the ESO at any time with the leave of the court; and
•
an offender may appeal to the Court of Appeal in relation to the making of or refusal to revoke an ESO.
17 In addition to these matters an offender is entitled to obtain an assessment report (or more than one report), to challenge any disputed material, to be legally represented and to be present during the hearing of any application.
| 18 | (e) I am not persuaded that on its proper construction s 11 of the Act is ‘compatible with human rights’ within the meaning of s 32(1). The making of an ESO pursuant to s 11 has a profound impact on the human rights of person to whom the order is directed. |
Taking into account all relevant factors, including those set out in paragraphs 7(2)(a) to imposition of an ESO are reasonable or demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
19 As the meaning of s 11 of the Act is ‘incompatible with human rights’ I then consider whether it is possible to interpret s 11, consistently with its purpose, in a way that is compatible with human rights.
20 In these proceedings the parties were in general agreement as to the scope of the obligation in s 32(1). It was accepted that the obligation only empowers a court to render an interpretation which is, so far as possible, compatible with human rights and tenable, having regard to the language and purpose of the relevant provision. Such an approach is consistent with the terms of s 32(1). Section 32(1) does not authorise a court to legislate and construe a provision in a way that is compatible with human rights, but untenable.
21 I have reconsidered the construction of s 11 in light of the interpretative obligation but I am not persuaded that there is an alternate construction which is both compatible with human rights and tenable. It follows that I am not persuaded that the interpretative obligation alters the construction of s 11 which flowed from the application of the usual or standard principles of statutory construction. I then apply that interpretation to the application.
22 Two assessment reports are in evidence – the report of Assessor 1, filed with the application and a psychiatric report prepared at AB’s request by Assessor 2.
23 The Respondent challenged the reliability of the assessment instruments used by Assessors 1 and 2 in forming their opinion of the likelihood of AB committing a relevant offence if released in the community without supervision.
24 I reject the challenge to the reliability of the assessment instruments used. The limitations of the instruments should be acknowledged (particularly in relation to aboriginal and female offenders) and they should be used in combination with dynamic variables specific to the particular offender. While the instruments should not be used as a mechanistic way and simply translated into the risk assessment required by s 11 of the Act, they are a legitimate component of a structured clinical judgment about an individual offenders risk of reoffending.
25 I provide an overview of both reports and then deal with the matters set out in ss 8(1) and (2) of the Act. Assessors 1 and 2 both conclude their reports with the opinon that AB is currently a high risk of reoffending.
26 AB’s potential offending is moderately grave, it is not at the higher end of relevant offences. It follows that in the context of this case ‘likely’ in s 11(1) means more likely than not.
27 I am satisfied – to a high degree of probability – as to the following matters:
• there is a risk of AB committing a relevant offence and that risk is both real and ongoing and cannot sensibly be ignored having regard to the nature and gravity of the possible offending; and • it is more likely than not that AB will commit a relevant offence if released in the community and not made subject to an ESO. 28 It follows that the test in s 11(1) has been met and the court is empowered to make an ESO. Having regard to all the circumstances it is appropriate that such an order be made in this case. While a discretion exists not to make the order sought, this is not the occasion to exercise that discretion.
29 The period of the ESO must not exceed 15 years and the period of the order must reflect the period that the court is satisfied, to a high degree of probability, that the offender will be likely to commit a relevant offence, unless subject to supervision.
30 The Secretary seeks a 15 year period of operation. I am not persuaded that a period of that duration is warranted.
31 A minimalist approach should be taken to the determination of the duration of an order. The court should exercise its discretion by setting a duration which is the minimum period necessary in order to meet the objects of the Act. Such an approach will limit the impact on the human rights of the person subject to the order.
32 The order in this case will operate for a period of 5 years. I am satisfied, to a high degree of probability, that such a period reflects the period that AB will be likely to commit a relevant offence unless subject to supervision. In reaching such a level of satisfaction I had regard to the following matters:
• AB’s engagement in treatment is likely to reduce his risk of reoffending and he will require treatment for a considerable period, while any assessment of the period required for treatment is speculative, the assessors in this case estimate the required period to be between a ‘couple of years’ and ‘another five odd years’; and • most long term studies suggest that the rate of sexual reoffending goes down over time and the highest risk is in the first 5 to 6 years immediately after release. 33 The Act requires that the first review of the order must be undertaken no later than 3 years after the order was first made, or any earlier review date specified in the order.
| 34 |
In the circumstances of this case a shorter period than 3 years should be specified for the the positive and to his credit’ in the period since his initial assessment in 2008 and Assessor 2 suggests that he requires further treatment for ‘a couple of years’. Having regard to these matters the first review is to be conducted 2 years after the commencement of the order.
1. Introduction
35 In December 2002 AB was sentenced to serve a six year term of imprisonment with a non parole period of five years following his conviction for indecent assault, aggravated burglary and recklessly causing injury.
| 36 |
AB’s sentence ended in October 2008 and he is currently subject to an Interim Act 2005 (the Act). I deal with the terms of AB’s Interim ESO later in this judgment.
37 The matter presently before the court is an application by the Secretary for an Extended Supervision Order (ESO) in respect of AB. In support of the application the Secretary says that there is a high degree of probability that AB is likely to commit a ‘relevant offence’ as defined in the Act if he is released into the community and not made subject to an ESO. The period sought for the duration of the ESO is 15 years, with a first review date three years after the commencement of the order.
38 The circumstances in which a court may make an ESO in respect of an offender are set out in s 11 of the Act. The central issue for determination is whether the offender is ‘likely to commit a relevant offence if released in the community … and not made subject to an ESO’.
39 The determination of that issue requires a consideration of the following matters.
(i) The proper construction of s 11 of the Act in light of the interpretative obligation in s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). (ii) The effect of the Charter on the court’s residual discretion under s 11 of the Act. (iii) Whether the court’s obligation to give a fair hearing to the respondent in relation to the application can be fulfilled in circumstances where the content of the ESO proposed is not identified to the court. (iv) The reliability of the instruments used to assess the risk that an offender will commit another relevant offence if released in the community and not made subject to an ESO. 40 On 1 June 2009, pursuant to s 42 of the Act, I made an order prohibiting the publication or reporting of the proceedings.
41 The following witnesses gave evidence in the proceeding:
• Dr Jim Vess • Dr Lynne Eccleston • Ms Jennifer Anne Hosking • Ms Elizabeth Margaret Nixon Penter • Assessor 1 • Assessor 2 42 In addition a court book was tendered as well as a two volume affidavit of Sarah Catherine Manly, which contained 123 annexures.
43 I prepared a summary of the evidence and provided it to the parties for comment. The parties generally accepted that the summary was accurate. In the course of their submissions both parties identified relevant evidence which had not been included in the draft summary document and written submissions were also filed dealing with these issues. I have had regard to all this material.
44 I propose to deal first with an overview of the legislative scheme and its operation in practice before turning to consider the Charter and the proper construction of s 11 of the Act. I will then apply that construction of s 11 to the facts and decide the central issue in the proceeding.
2. The Serious Sex Offenders Monitoring Regime
2.1 Overview of the legislative scheme 45 The main purpose of the Act is to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences, and who are a serious danger to the community, to be subject to ongoing supervision while in the
community (s 1).
46 The Act provides that the Secretary may apply to a court for an ESO in respect of an offender who is an ‘eligible offender’.
47 Section 4(1) defines an ‘eligible offender’ as a person,
“(a) on whom a court has at any time (whether before, on or after the
commencement of this Act) imposed a custodial sentence in respect of a
relevant offence; and(b)
who, at the time at which an application is made under Division 1 of Part 2 for an extended supervision order in respect of him or her, is serving –
(i)
a custodial sentence referred to in paragraph (a) (a relevant sentence); or
(ii)
another custodial sentence served concurrently with the relevant sentence or cumulatively on the relevant sentence or on another sentence that was uncompleted at the time of completion of the relevant sentence, whether that other sentence was, or those other
sentences were, imposed before, at the same time or after the relevant
sentence.”
48 Subsection 4(2) of the definition provides that a person is not an eligible offender if the conviction or finding of guilt in respect of the only relevant offence that makes him or her an eligible offender is quashed or set aside by a court; or his or her sentence in respect of that offence is altered such that he or she would not have been an eligible offender had the amended sentence been the original sentence.
49 The court to which an application may be made is the court that sentenced the offender for the ‘relevant offence’. Only the Supreme Court or the County Court can make an ESO (s 1(2)(b)).
50 A ‘relevant offence’ means an offence listed in the Schedule to the Act. The list of relevant offences was originally confined to sexual offences against children but was later substantially broadened and now covers sexual offences generally.[2] The offences listed as being ‘relevant offences’ range from offences involving sexual penetration (such as rape and incest) through to the possession of child pornography.
[2] See Justice Legislation Amendment Act 2000 (Vic), s 24(1)
51 An application must be accompanied by at least one ‘assessment report’. A copy of the application must be served on the offender (s 9).
52 The Act contains a number of provisions governing the making and content of an assessment report. An assessment report can only be made by a psychologist, psychiatrist or other prescribed health service provider, following a personal examination of the offender (s 6 and s 7(1)). An assessment report must address the following matters in relation to the offender:
(a) whether or not the offender has a propensity to commit relevant offences in the future; (b) the pattern and progression to date of sexual offending behaviour on the part of the offender and an indication of the nature of any likely future sexual offending behaviour on his or her part; (c) efforts made to date by the offender to address the causes of his or her sexual offending behaviour; including whether he or she has actively participated in any rehabilitation programs; (d) if the offender has participated in any rehabilitation programs, whether or not this participation has had a positive effect on him or her; (e) relevant background of the offender including developmental and social factors and other offending behaviour; (f) factors that might increase or decrease any identified risks; (fa) if an additional assessment of the offence has been obtained under section 7B, the
results of that assessment; and(g) any other relevant matters (s 8(1)). 53 Importantly s 8(2) provides that an assessment report must state:
“(a) the medical experts’ assessment of the risk that the offender will commit
another relevant offence if released in the community and not made subject to
an extended supervision order; and(b) his or her reasons for that assessment.”
54 The offender is also entitled to obtain an assessment report (or more than one report) (s 10) and is entitled to be legally represented (s 33).
55 Subject to s 29, the offender must be present during the hearing of any application and a court may only begin to hear an application if satisfied that the offender has had a reasonable opportunity to obtain legal representation and an independent assessment report (s 10(1)(b)).
56 In this matter it is common ground that AB is an ‘eligible offender’; that the Secretary has made application for an ESO; and that the application is accompanied by an assessment report prepared by Assessor 1, a ‘medical expert’ (as defined in s 3).
57 A court may only make an ESO in respect of an offender if it is satisfied ‘to a high degree of probability’ that the offender is ‘likely to commit a relevant offence’ if released in the community and not made subject to an ESO (s11(1)). The proper construction of s 11 is a matter of contention in the proceeding and I deal with it later.
58 An ESO must contain certain mandatory conditions, namely that the offender must (s 15(3)):
“(a) not commit, whether in or outside Victoria another relevant offence or an
offence that if committed in Victoria would be relevant offence;
(b)
attend at any place as directed by the Secretary or the Adult Parole Board for the purpose of supervision, assessment or monitoring;
(c)
report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of this paragraph;
(d)
notify the Secretary of any change of name or employment at least 2 clear working days before the change;
(e) not move to a new address without the prior written consent of the Secretary;
(f) not leave Victoria except with the permission of the Secretary granted either generally or in relation to the particular case; (g) obey all lawful instructions and directions of the Secretary given under section 16(1); (h) obey all lawful instructions and directions of the Adult Parole Board given under section 16(2).”
59 In addition to the mandatory conditions, the Secretary may give an offender subject to an ESO ‘any instruction or direction that the Secretary considers necessary to ensure the effective and efficient implementation and administration of the conditions of the order’ (s 16(1)).
60 The Adult Parole Board may give an offender subject to an ESO any instruction or direction that the Board considers necessary to achieve the purpose of the conditions of the order (s16(2)). The purposes of the conditions specified in an ESO are set out in s 15(2), namely:
− to ensure that the community is adequately protected by monitoring the offender;
and− to promote the rehabilitation, and the care and treatment of the offender. 61 The instructions or directions given by the Board may include instructions or directions as to:
(a) where the offender may reside; (b) times at which the offender must be at home; (c)
places or areas that the offender must not visit or may only visit at specified times;
(d)
treatment or rehabilitation programs or activities that the offender must attend and participate in;
(e) the types of employment in which the offender must not engage; (f) community activities in which the offender must not engage; (g) persons or classes of person with whom the offender must not have contact; (h)
forms of monitoring (including electronic monitoring) of compliance with the extended supervision order to which the offender must submit;
(i) personal examinations by a medical expert for which the offender must attend for the purpose of the Board being given a report by the expert to assist it in determining the need for, or form of, any instruction or direction under this section” (s 16(3)).
62 An instruction or direction given by the Board as to where an offender may reside may require the offender to reside at premises that are situated on land that is within the perimeter of a prison (whether within or outside any walls erected on prison land) but does not form part of the prison (s 16(3A)). An offender given such an instruction or direction is taken to have been released in the community and to be residing in the community while residing in accordance with that instruction or direction (s 16(3)).
63 The Secretary or the Board may at any time vary an instruction or direction (s 16(4)). The Board must ensure that written notice of any instruction or direction given by it or any variations of such an instruction or directions, is served on the offender as soon as practicable after it is given or varied (s 16(5)).
64 The Board is not bound by the rules of natural justice and, by regulation, the Board is not a public authority for the purposes of the Charter.[3]
[3] Charter of Human Rights and Responsibilities (Public Authorities) Interim Regulations 2008, regn 5(a). The
65 If the offender fails without reasonable excuse to comply with any condition in an ESO he or she is guilty of an indictable offence and is liable to level 6 imprisonment (5 years maximum) (s 40).
66 I deal later with other aspects of the form of an ESO.
67 An ESO must be reviewed by the court that made the order no later than 3 years after it was first made or any earlier first review date specified in the order (s 21(1)(a)). Subsequent reviews are to take place at intervals of no more than 3 years or any shorter intervals specified in the order (s 21(1)(b)).
68 The purpose of a review is to determine whether the offender should remain subject to the ESO (s 21(4)). On review the court must revoke the ESO unless satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if in the
community and not subject to an ESO (s 25).
69 The Secretary may apply to the court at any time for it to undertake a review of an ESO made by it (s 21(2)(b)).
70 The offender, with the leave of the court, may apply to the court, at any time, for it to undertake a review of an ESO made by it (s 21(3)).
71 Division 4A of Part 2 of the Act deals with Interim ESO’s. A court may only make an interim ESO if satisfied that:
•
the Secretary has applied for an ESO or the renewal of an ESO and that application will not be determined before the offender is released in the community without supervision (s 25D(1)(a), (b) and (c)); and
•
the making of the order is justified having regard to any matter the court considers appropriate (s 25D(1)(d)); and
• it is in the public interest to make an interim ESO having regard to,
− the main purpose of the Act (s 25D(1)(e)(i)); and −
the reasons why the ESO application will not be determined before the expiry of the offender’s sentence or (in the case of a renewal application) before the expiry of the existing ESO (s 25D(1)e)(ii).
72 The total period that an offender may be made subject to an Interim ESO cannot exceed 4 months, unless the court making or extending the order considers that exceptional circumstances exist (s 25G(2)).
73 The operation of an ESO is suspended during any period that the offender:
• is in the legal custody of the Secretary or the Chief Commissioner of Police; • is in custody as a forensic patient or forensic resident under a custodial supervision order; • is detained in an approved mental health service as a security patient or as an involuntary patient (s 19(1)). 74 The operation of an ESO recommences on ceasing to be suspended and any period of suspension does not count in calculating the period of the order still remaining.
75 An ESO expires:
• at the end of its period of operation; • on its revocation by a court on a review, or on appeal; • on it being replaced by another ESO, or • on the offender being taken into custody to undergo service of an indefinite sentence (s 17). 76 At any time while an ESO is in force the Secretary may apply to the court that made the order for it to be renewed. More than one application for the renewal of an ESO may be made in respect of an offender.
77 Sections 6 to 11 of the Act (with any necessary modifications) apply to applications to renew an ESO. Accordingly a court may only renew an ESO in respect of an offender if satisfied ‘to a high degree of probability’ that the offender is ‘likely to commit a
relevant offence’ if released in the community and not made subject to an ESO (ss 11
and 24).78 The form and conditions to be specified in a renewed ESO are the same as those specified in ESO’s generally (s 25).
79 The effect of these provisions (ie. ss 24 and 25) is that an offender may be subject to a series of successive ESO’s, each of which may operate for a period of 15 years.
80 An appeal lies from a ‘relevant decision’ in relation to an ESO (ss 36 and 37). A ‘relevant decision’ means a decision made by a court under Part 2 of the Act:
| ||||||
| 81 | ARM v The Secretary to the Department of Justice[4] |
[4] [2008] VSCA 266
In the Court of Appeal construed duration.
82 I now turn to the practical operation of these provisions.
2.2 The practical operation of the scheme 2.2.1 General
83 The Sex Offender Management Branch (S.O.M. Branch) within the Department of Justice identifies all sex offenders who have committed a relevant offence and who have been sentenced to prison for that offence. A list is generated to identify those offenders who are ‘eligible offenders’ within the meaning of the Act.
84 Prior to the end of their sentence, all eligible offenders are reviewed in terms of their risk of sexual re-offending. Those who have been assessed as being in the ‘moderate- high’ or ‘high’ risk category based on static and dynamic risk factors are referred for an ESO Assessment.
85 Once the assessments and file reviews have been completed, the circumstances of all eligible offenders are considered by an ‘ESO Review Board’. This Board is chaired by the Deputy Commissioner, Community Correctional Services and Sex Offender Management, and includes representatives of Corrections Victoria, the Victorian Government Solicitor, Victim Support Agency, and Department of Human Services. One of the Board’s functions is to ensure that all relevant information is provided to the Secretary so that she may determine whether to make an application for an ESO.
86 In the 12-month period between 1 July 2007 and 30 June 2008 about 150 eligible offenders completed their sentences of imprisonment. The Secretary considered 34 ESO Assessment Reports in relation to these offenders and made application for an ESO in ten cases. Eight of these applications were considered and granted by the court; two are still pending.
87 Since the commencement of the Act the Secretary has made 57 ESO applications:
2.2.2 The types of conditions on ESOs
88 The Adult Parole Board issues instructions and directions in relation to each ESO. According to Ms Penter these instructions and directions are individualised to reflect the specific risks and needs of the individual offender.[5]
[5] Exhibit A10 at para 19
89 Instructions and Directions may include that the offender:
(i) carry out the lawful instructions of the community corrections officer; (ii) report as and when directed by the community corrections officer; (iii)
comply with any form of electronic monitoring and any other form of monitoring as directed by the Centre Manager;
(iv)
undergo assessment and treatment for alcohol or drug addiction or submit to medical, psychological or psychiatric assessment and treatment as directed by the community corrections officer;
(v)
attend the Community Forensic Mental Health Service for assessment, as required, and undergo such treatment as directed by the Director, Victorian Institute of Forensic Mental Health or his nominee;
(vi)
have no contact supervised or unsupervised with children or young persons under the age of eighteen;
(vii)
not without reasonable excuse enter or loiter near any school or children’s playground or child care area;
(viii)
not join, affiliate with, attend on the premises of, or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation;
(ix)
not without reasonable excuse be within 500 metres of a school between 8am and 9.30am and 2.30pm to 4.00pm on school days or be in an area within 300 metres of a school at any time, nor enter school premises at any time;
(x)
not visit public parks without written permission from the supervising community corrections officer;
(xi)
adhere to the curfew between [x]pm and [x]am except with the written permission of the supervising community corrections officer;
(xii)
not leave his/her designated residential address except in the company of a Corrections Victoria approved escort;
(xiii) have no contact whatsoever either directly or indirectly with the victims; (xiv) have no contact with any convicted sex offender [except for the purposes of sex of the Extended Supervision Order Transitional Accommodation Centre/Corella Place];
(xv) reside at (a nominated location);
(xvi) not move from this address without the prior written consent of the Secretary to the Department of Justice;
(xvii) report before the Board for interviews as and when directed by the Board;
(xviii) participate in the Sexual Offender Supervision Program as directed by the
supervising community corrections officer;(xix) not use or access the internet; (xx) abstain from drugs or alcohol, and agree to undergo testing for the use of drugs or alcohol. 90 ESO conditions are reviewed by the staff at the S.O.M. Branch and the Board every 3 months.[6]
[6] Tn 238, Lines 12-18
91 In general the Board is guided by the recommendations of the S.O.M. Branch and in the vast majority of cases such recommendations would be adopted by the Board. In a very small number of cases the Board has imposed additional directions and instructions
beyond those recommended by the S.O.M. Branch.[7]
92 Instructions and Directions given to an offender generally include a direction as to where the offender must reside, and a direction that the offender not move without the prior written consent of the Secretary to the Department of Justice.
93 Corrections Victoria undertakes an assessment of each offender’s proposed residential address including the living environment and its surrounds. This assessment considers community safety and any individual risk factors as they relate to the offender; for
example proximity to schools or children’s facilities. Protective factors, or factors that
may reduce risk, such as a supportive family environment, are also considered.94 All accommodation options proposed by an offender who is subject to an ESO (or in respect of whom an application for an ESO has been made) are assessed in terms of suitability. Offenders are able to identify potential accommodation through their own contacts and searches. Corrections Victoria has a contract in place with a specialist community agency to provide community support to offenders on ESO’s including assistance with the identification of suitable accommodation.
95 Corrections Victoria has also commenced a Housing Project which aims to develop a partnership approach between corrections and suitable non-government housing and support service providers to provide existing prisoners and offenders, including sex offenders, with access to accommodation places. A range of accommodation options such as transitional leases and longer term leases are being considered.
96 Offenders subject to an ESO, including an Interim ESO, are housed in either the Extended Supervision Order Transitional Accommodation Centre (ESOTAC), Corella Place or Residence One if there is no suitable accommodation for them in the wider community.[8] It is convenient to refer to these facilities collectively as the Ararat facilities.
[7] Tn 283 Lines 7-16 [8]
(i) Extended Supervision Order Transitional Accommodation Centre (ESOTAC)
97 ESOTAC is a housing area on prison land within the secure perimeter of Ararat Prison. The perimeter fencing is made up of 3 fences in close proximity to each other.
98 ESOTAC comprises 11 relocatable units. Eight of those units have 2 bedrooms and the remaining 3 units have 1 bedroom.
99 In each of the 11 units, there is a kitchen in the Living area including kitchen cupboards, fridge and stove. The bathroom comprises shower, toilet, basin and mirror. There is a washing machine in the bathroom. Every unit has been fitted with basic furniture, soft furnishings, and basic requirements including a single bed, wardrobe, lounge, breakfast table and chairs, kitchen utensils, crockery and cutlery, clothesline, one set of linen and a basic television set. Each offender is able to provide his own furniture and furnishings, if they wish and can afford it.
100 The units are located in two areas of ESOTAC in close proximity to each other. There are 7 units in one area and 4 units in the other areas. The 4 units in the second areas have been disconnected from services and will shortly be relocated away from ESOTAC for use within the prison.
101 ESOTAC also comprises:
• a work-shed which may be used by offenders for activities or hobbies. It contains basic gardening tools and bits of wood for use in gardens. In August 2008, a table tennis table and dart board was added; • a gazebo/barbecue area; and • small gardening areas. 102 There is a 2 metre high cyclone wire fence with a locked gate around the boundary of ESOTAC. The fence is covered in beige shade-cloth. The shade-cloth was added after complaints by offenders that they could be seen by prisoners at Ararat Prison and were the subject of abuse from those prisoners. The shade-cloth also obscures the view from ESOTAC towards an area of the Ararat Prison where children visit.
103 There are two CCTV surveillance cameras located in the prison adjacent to ESOTAC and connected to the prison master control. These cameras monitor the presence of prisoners and prisoner activity in the horticultural area near to ESOTAC. The cameras are monitored by prison staff and not by Corella Place staff. There are no cameras within ESOTAC.
(ii) Corella Place
104 This is a residential housing facility on prison grounds located outside the perimeter fence of Ararat Prison, but on prison land. It presently comprises 18 relocatable residential units. The style and construction of the units is the same as those at ESOTAC and are fitted out and supplied with similar basic amenities as ESOTAC.
105 Corella Place also comprises:
•
a work-shed for recreational activities and hobbies. It contains basic gardening tools and bits of wood for use in gardens. In August 2008 a pool table and balls were added:
•a gazebo/barbecue area;
• office accommodation for the conduct of interviews and case management; and • a car park for offenders (not currently used). 106 The boundary of Corella Place is formed mainly by the rear walls of the units with pool type fencing in the gaps. The fencing is 180cm high black powder-coated metal vertical rails, with capping at the top.
107 There is also a single line of two-metre shade-cloth covered screen fencing running North-South along the side of Units 21-24 of Corella Place.
108 There is a double gate into the facility which is open during the day. The facility is entered from a road and not via the prison. Every offender at Corella Place is presently subject to an escorting condition.
109 Corella Place is not staffed overnight and the gate in the pool-type fencing is electronically locked. Should any offender wish to leave the premises at night he can press the intercom button at the gate. The gate will be unlocked by Corrections staff. This applies regardless of whether the offender’s ESO is subject to an escorting
condition, but if the offender’s departure is in breach of his ESO he or she could be
charged.110 If they choose to leave Corella Place without an escort they would be in breach of their conditions.[9]
[9] Tn 265 Lines 21-29
(iii) Residence One
111 There is also a residence on prison grounds, outside the perimeter of Ararat Prison, known as “Residence One”. This has also been used to house offenders subject to an ESO.
112 One offender subject to an ESO is accommodated at Residence One. The residence is a three bedroom house formerly occupied by the Governor of the Prison that is located outside the perimeter of the prison but on prison land and faces onto the main road outside the prison. The house has side and rear fences to limit visibility to and from the prison. The front yard has a post-and-rail courtesy fence and wire gate to the driveway, which is entered from the main road and not via the prison.
113 There have been two periods of a few months each since May 2005 when it has been necessary temporarily to accommodate offenders in two caravans at ESOTAC when the number of offenders was greater than the number of places available in the units. When this has occurred, portable toilet and shower facilities have also been provided. There have been no caravans on site since June 2008.
114 An offender who is subject to an ESO who is unable to secure appropriate independent accommodation, is placed in either in Corella Place or ESOTAC taking into account their capacity to function and comply with differing levels of monitoring and supervision. Offenders will generally be placed to Corella Place unless they have demonstrated significantly restricted capacity to control their behaviour, or have demonstrated non-compliance or unwillingness to engage in treatment.
115 Wherever practicable, offenders are accommodated in separate residential accommodation units. There are occasions in which two offenders may be accommodated in a two bedroom unit if vacancies are limited or if one offender agrees
to act as a care-giver for another offender in need of care.
116 Very few residents at the Ararat Facilities have successfully identified a property to move to, had it approved and moved out.[10] The environmental scan and approval process takes ‘a minimum of at least two weeks … often longer’.[11] Since 2005, four offenders (including AB) have been transferred from ESOTAC/Corella Place to houses in the community.
[10] Ms Hosking Tn 250 Lines 6-11
[11] Tn 250 Lines 12-16
117 All offenders currently at ESOTAC and Corella Place are subject to the following restrictions:
(i) They are required to remain within their unit between the hours of 8pm and 7am. (ii)
All of the offenders accommodated at Corella Place are monitored electronically and some of the offenders at ESOTAC are monitored electronically. Electronic monitoring is used to monitor compliance with curfew conditions and detects whether an offender has moved beyond the perimeter of his unit outside the hours of 8pm and 7am.
(iii)
All offenders may not leave ESOTAC or Corella Place except in the company of a Corrections Victoria escort, except for one offender who is permitted to attend a specific activity for 3 hours per fortnight, without an escort.
118 As staffing levels permit offenders have about 10 scheduled outings each month away from ESOTAC and Corella Place. Each offender suggests appropriate activities for outings, such as social visits to family or friends, shopping, bushwalks, bike riding etc and other recreational activities. The staff member who accompanies the offender on an outing is required to maintain visual contact with him. The number of community visits can be as low as six per month if there are staff problems.[12]
119 Visits are rostered a month ahead and it is quite difficult to change a nominated visit.[13]
120 At present residents at the Ararat Facilities cannot go on community visits together as that would be in breach of one of their ESO conditions i.e. not to associate with other sex offenders outside the Ararat Facilities.[14]
121 Offenders are permitted to have visitors but are strongly encouraged to have visits away from Corella Place and ESOTAC in order to make use of facilities in the general community and to respect the privacy of other offenders.
122 Offenders do not pay rent or utilities when they reside at ESOTAC or Corella Place but do pay for living expenses, including food, telephone calls, and cleaning products. Offenders cook for themselves and clean their own units. All of the offenders receive Centrelink benefits of one form or another. On outings they do not pay for transport or for the escort, but pay for their own meals and such things as movie tickets. Offenders may purchase their own media during outings, however certain items, such as “R” rated DVDs, are not permitted in the Ararat facilities.
123 Other items, such as sharp knives and mobile phones are subject to restrictions within ESOTAC to ensure that they do not make their way into the hands of prisoners in the Ararat Prison. These restrictions do not apply in Corella Place.
124 Residents in the Ararat Facilities are encouraged to engage in paid employment, within the conditions of their ESO but ‘typically those restrictions are quite restrictive and so that makes it quite difficult to gain employment’[15]. None of the current residents are in paid employment[16] and none have had their conditions changed to allow them to leave and attend work without an escort[17].
[12] Tn 284 Lines 12-18 [13] Tn 251 Lines 1-22 [14] Tn 251 Lines 23-30 [15] Tn 236 Lines 13; 254 Lines 8-10
[16] Tn 261 Lines 22-23
[17] Tn 254 Lines 22-25
125 Exhibit 15 contains a list of all the ESO conditions and Interim ESO (‘IESO’) conditions to which offenders are currently subject. The persons subject to these conditions have been de-identified. The information from the list has been formulated into an index and a table identifying the various conditions that have been imposed and whether they have subsequently been varied.
126 The current location of offenders subject to an Interim ESO or an ESO is set out in the table below:[18]
[18] This table is derived from Exhibit A15
Location of offenders on Interim ESO or ESO’s
ESOTAC Corella Place Nominated Other *
(11 Units) (18 units) Residence
5 15 19 1
* One offender resides at Disability Forensic Treatment and Assessment Service and one offender is
not subject to a direction as to where he may reside.
127 Exhibit A15 also shows that of the 41 offenders subject to an Interim ESO or an ESO, 38 are subject to a curfew condition[19] and 36 are subject to electronic monitoring[20].
[19] Exhibit A15, Annexure JAH1, Offenders 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25,
[20] Ibid, Offenders 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33,
128 According to Ms Penter conditions in an ESO are reviewed regularly and most of them change over time.[21]
[21] Tn 270 Lines 17-24
129 To the extent that Ms Penter’s evidence is intended to suggest that the conditions in most ESO’s are changed over time such that they become less restrictive, that proposition is not supported by an analysis of Exhibit A15. That exhibit shows that of the 41 offenders subject to an Interim ESO or an ESO, 16 had experienced no change in their conditions and for another 6 offenders the only change in their conditions related to their relocation within the Ararat facilities (usually from ESOTAC to Corella place).
130 Of the other 19 offenders who had a change in conditions:
• 9 had more restrictive conditions imposed;[22] • 6 had their conditions varied so that they were less restrictive;[23] and • the balance (4 offenders) had a mixture of variations made, some more restrictive and some less restrictive.[24] [22] Exhibit A15, Annexure JAH1, offenders 6, 10, 15, 16, 23, 28, 36, 38 and 40
[23] Ibid, offenders 19, 20, 22, 27, 35 and 37
[24] Ibid, offenders 4, 29, 31 and 41
131 Twenty of the 41 offenders subject to an Interim ESO or a final ESO are required to reside at the Ararat facilities and 19 are subject to a direction that they must reside at a particular residential address and must not move without the prior written consent of the Secretary.
2.2.3 AB’s Interim ESO
132 The instructions and directions given by the Board to AB pursuant to his Interim ESO have changed over time.
133 The original instructions and directions are set out in Exhibit R1, as follows:
(a)
that there being no other suitable alternative accommodation at this time, the Board directs that you reside at Corella Place in Ararat, and not move from the address without the prior written consent of the Secretary to the Department of Justice;
(b)
that you are not permitted to leave your designated residential address except in the company of a Corrections Victoria approved escort;
(c)
that you comply with any form of electronic monitoring, and any other form of monitoring as directed by the Centre Manager;
(d) that you report before the Board for interview as and when directed by the Board; (e) that you carry out the lawful instructions of the Community Corrections Officer; (f) that you report as and when directed by the Community Corrections Officer; (g) that you abstain from alcohol; (h)
that you submit to testing for alcohol or drug use as directed by the Centre Manager;
(i)
that you undergo assessment and treatment for alcohol and drug addiction or submit to medical, psychologist or psychiatric assessment and treatment as directed by the Community Corrections Officer;
(j)
that you attend the Community Forensic Mental Health Service for assessment, as required, and undergo such treatment as directed by the Director, Victoria Institute of Forensic Mental Health of his nominee;
(k)
that you be assessed for participation in the Sex Offender Programs (SOP) and other programs as directed by the Supervising Community Corrections Officer;
(l) that you have no contact whatsoever either directly or indirectly with the victims; (m)
that you have no contact supervised or unsupervised with children under the age of 16 years or young persons under the age of eighteen;
(n)
not without reasonable excuse enter or loiter near any school or children’s playground or child care area;
(o)
not join, affiliate with, attend on the premises of, or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation;
(p)
not without reasonable excuse be within 50 metres of a school between 8.00am to 9.30am and 2.30pm to 4.00pm on school days or loiter in or near a school at any time, nor enter school premises at any time;
(q)
not visit public parks without written permission from the supervising Community Corrections Officer;
(r)
not to have contact with any convicted sex offender except for the purposes of sex offender treatment programs and except for contact with the other residents of the Extended Supervision Order Transitional Accommodation Centre or at Corella
Place.
(s)
that you adhere to the curfew between 8pm and 7am except with the written permission of supervising Community Corrections Officer;
(t)
that you comply with the written lawful directions imposed when accessing a computer; and
(u)
that you comply with the written lawful directions imposed when accessing the internet.
134 While resident at Corella Place (i.e. from the time of his release from custody on 23 October 2008, until 3 June 2009) AB had 8 to 10 scheduled outings in the community each month. On one occasion he had contact with his niece and nephew while visiting his brother and mother, in contravention of the conditions set by the Board. He appeared before the Board and received a warning.
135 In terms of accommodation suggestions AB had proposed his brother’s property. His brother initially agreed for him to be accommodated there but that offer was later withdrawn because the brother was about to have a new child and move into a new house. There were some consequent problems with space and the number of rooms. It is not suggested that his brother is not supportive of AB.[25]
[25] Tn 246 Lines 29-31; 247 Lines 1-5
136 In conjunction with ACSO, AB has proposed a number of other properties but environmental scans assessed the properties as unsuitable for reasons including the close proximity of young single mothers who could be potential victims given the opportunistic nature of AB’s offending.
137 The conditions of AB’s Interim ESO commenced on 23 October 2008 until they were varied by the Board on 3 June 2009. The variation deleted paragraphs (b), (j), (n), (o) and (p) from the original instructions and directions.
138 The condition that he attend the Community Forensic Health Service was removed because treatment is not an option while AB is on an interim ESO. If a final ESO is made the condition may be reimposed if, for example, an assessment for anti androgen treatment was considered appropriate.[26] If a final ESO was made there would be a thorough assessment of AB for participation in treatment programs.27
[26] Tn 240 Lines 22-30 27 Tn 242 Lines 9-17 28 Tn 243 Lines 16-21
139 Three of the original instructions and directions were varied:
• the direction that AB reside at Corella Place was altered and he was directed to reside at a residence in the community; • direction (r) was varied by deleting the words ‘except for contact with other residents of ESOTAC or at Corella Place’ and adding the words ‘except for the purposes of sex offender treatment program’; and • direction (m) was varied by adding the words ‘without the written permission of a Community Corrections Officer’.
140 AB remains subject to a range of instructions and directions including a curfew between 8pm and 7am, electronic monitoring and abstinence from alcohol.
141 A curfew has been imposed ‘because of AB’s offending, his most recent index offence occurred at night and in the context of some alcohol use so it was considered that it would be reasonable to impose a curfew to avoid the risk of that occurring again’.28
142 The condition limiting his contact with children is said to relate to concerns about the impulsive nature of AB’s offending and the fact that in the past he had one victim who was aged 16.[29] I note that this offence took place more than 15 years ago and AB was 19 years of age at the time.
[29] Tn 244 Lines 8-12, 246 Lines 7-14
143 The condition that he obey all lawful directions of a Community Corrections Officer is a standard direction in all ESO’s. Typically the condition would be used if an offender was being particularly difficult with, for example, attending interviews on time.[30]
[30] Tn 258 Lines 30-31; 259 Lines 1-3 and Lines 13-19
144 A specialist case manager (SCM) will monitor AB’s compliance with the terms of his ESO. If not working he would initially see his SCM twice a week; but if working he would only see him once a week. If assessed as suitable for treatment then that
treatment would take place either weekly or fortnightly.[31]
[31] Tn 256 Lines 1-9; 261 Lines 1-8
145 In his new premises AB is paying rent and for all intents and purposes the premises are his own and he is able to invite guests to visit.[32]
[32] Tn 243 Lines 3-7
146 AB’s brother gave evidence about how the move from Corella Place to AB’s current residence was carried out and his observations about AB’s current accommodation.[33]
147 AB currently resides in a rooming house which has about 18 rooms. AB’s room is about 5 metres by 4 metres with a table, wardrobe, single bed and a bar fridge. He shares a bathroom and kitchen with other residents. AB’s brother describes the
accommodation in the following terms:
“I have visited the rooming house three times since by brother moved in there. left a lot of old and rotten food and dirty dishes in the shared area. It was very dirty and at times had a bad smell. Two out of my three visits to the rooming house, I saw empty and half-empty cans and bottles of alcohol in the hallways, in the kitchen or in the stairwell of the rooming house. I am worried how being in a place where there is alcohol lying around might affect my brother’s order. He can’t exactly stay very far away from alcohol and drugs when the place he lives in is like that.”[34]
148 I now turn to consider the proper construction of s 11 of the Act.
3. The proper construction of section 11 of the Act
3.1 The Charter and the interpretative obligation
[33] Exhibit R
[34] Ibid at paragraph 12
149 The main purpose of the Charter is ‘to protect and promote human rights’ by the means set out in paragraphs 1(2)(a) – (e), namely: specifying the human rights to be protected and promoted; ensuring legislation is interpreted compatibly with human rights; making
it obligatory for all public authorities to act in a way that is compatible with human declarations of inconsistent interpretation.
rights; requiring statements of compatibility in respect of all Bills introduced into150 The human rights that Parliament specifically seeks to protect and promote are set out in Part 2 of the Charter. The interpretation of legislation usually raises the issue of whether the provision being construed infringes or limits the human rights specified in Part 2.
151 Subsection 7(2) is a general limitations provision, it provides:
“(2) A human right may be subject under law only to such reasonable limits as
can be demonstrably justified in a free and democratic society based on
human dignity, equality and freedom, and taking into account all relevant
factors including:
(a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purposes that the limitation seeks to achieve.”
152 Section 32(1) sets out the interpretative obligation, it provides:
“(1) So far as it is possible to do so consistently with their purpose, all statutory
provisions must be interpreted in a way that is compatible with human
rights.”
153 I deal later with the scope of the interpretative obligation.
154 The parties are in dispute about the correct means of applying the interpretative obligation in s 32(1) and the justification test in s 7(2).
155 The Secretary submits that the proper approach to s 32 involves three steps:
(i)
Ascertain the meaning of the statutory provision being interpreted, by reference to the usual principles of statutory construction;
(ii)
Consider whether the meaning of the provision is ‘compatible with [the] human rights’ specified in the Charter. The question of compatibility is determined by reference to s 7(2) and involves a consideration of the matters in paragraphs
7(2)(a) to (e) and whether the extent of the limitation on human rights is
‘reasonable’ and demonstrably justified;
(iii) If the meaning of the provision (as ascertained by the usual principles of statutory construction) is incompatible with human rights, then, is it possible to interpret the statutory provision, consistently with its purpose, in a way that is compatible with human rights.
156 The Respondent submits that the proportionality exercise inherent in s 7(2) has no role to play in the interpretation exercise pursuant to s 32. If a legislative provision limits one or more of the human rights in the Charter then the interpretative obligation is enlivened, unencumbered by questions of reasonableness or proportionality.
157 The approach proposed by the Secretary is to be preferred and I have applied it in this case. It is consistent with the approach adopted by Nettle JA in RJE;[35] Bell J in Kracke v Mental Health Review Board;36 and Besanko J (with whom Gray P and Penfold J agreed) in the ACT Court of Appeal in R v Fearnside,[37] and the same methodology is reflected in the approach of Tipping J in R v Hanson[38] and adopted by the courts in the United Kingdom,[39] Canada,[40] South Africa[41] and Hong Kong.[42]
[35] At paras [105] – [106]
[37] (2009) 165 ACTR 22 at [94] and [97] – 98]
[38] [2009] 3 ANLR 1 at [88] – [89], with whom Blanchard and McGrath JJ, agreed)
[39] See Poplar Housing v Donoghue [2003] QB 48)
[40] See R v Oakes [1986] 1 SCR 103
[41] See Moise v Greater Germiston Transitional Local Council 2001 (4) Subdivision Act 491 at [7]
[42] See HKSAR v Lam Kwong Wai(2006) 9 HKCFAR 574 at [29]
158 I note however that in this instance it matters not which approach is taken. For reasons that will become apparent, both paths lead to the same end point – namely, the application of the interpretative obligation to the construction of s 11 of the Act.
159 Before turning to apply the usual or standard principles of statutory construction to ascertain the meaning of s 11 of the Act , it is necessary to say something about s 5 of the Charter.
160 Section 5 provides that rights or freedoms that arise or are recognised under any other law – including international law, the common law and Commonwealth law – must not be taken to be abrogated or limited only because the right or freedom is not included in the Charter or is only partly included.
161 The continuing operation of the common law and other sources of human rights is of significance because they inform the standard or usual approach to statutory construction, in two ways:
•the relevance of Australia’s international obligations; and
[43] Coco v R (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ)
• the common law proposition that fundamental rights and freedoms cannot be abrogated without ‘a clear expression of unmistakable and unambiguous intention’.[43] 162 For convenience I will refer to the practical implementation of both principles, collectively, as giving effect to a human rights focussed approach to statutory interpretation.
163 As to the first principle, it is clear that Australia’s international obligations, although not incorporated into domestic law, may inform the interpretation of a statutory provision. International conventions to which Australia is a party supply content to a rule of construction that legislation is to be interpreted and applied, as far as the language of the provision permits, so as not to be inconsistent with the comity of nations or with the established rules of international law[44]. This principle applies only where a provision is ambiguous,[45] but no narrow approach is taken to the concept of ambiguity.[46] As Gummow J put it in Minister for Foreign Affairs and Trade and Others v Magno and Another:[47]
[44] Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 at 363 per O’Connor J; Brown and
[45] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38)
[46] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287
[47] (1992) 112 ALR 529 at 535
“… the Parliament may make no attempt to incorporate expressly into domestic
law the terms of a convention which has been ratified by Australia. Nevertheless,
the terms of the convention may be resorted to in order to help resolve an
ambiguity in domestic primary or subordinate legislation: Infabrics Ltd v Jaytex
Ltd [1982] AC 1 at 16; R v Home Secretary: Ex Parte Brind [1991] 1 AC 696 at
747-8, 749-50, 760; Dietrich v R. supra, at 391-3, 425-6. This is on the footing
that, prima facie, the Parliament should be taken as intending to legislate in
conformity and not in conflict with international law: Zachariassen v
Commonwealth (1917) 24 CLR 166 at 181 Polites v Commonwealth (1945) 70
CLR 60 at 68-9, 77, 80-1.”
164 International law now has an entrenched influence on Australian jurisprudence.[48]
[48] Nolan v MBF Investments Pty Ltd [2009] VSC 244 at [150]-[167] per Vickery J; Royal Womens Hospital v Medical
165 In this context it is important to recognise that the rights set out in Part 2 of the Charter are primarily drawn from the International Covenant on Civil and Political Rights (the ICCPR). The ICCPR was adopted by the United Nations General Assembly in 1966
and subsequently ratified by Australia, with effect from 13 November 1980.
166 A summary of the rights in Part 2 of the Charter by reference to the corresponding ICCPR article is set out in the table below.
The Charter rights and the ICCPR[49]
[49] Table derived from Pound A and K Evans (2008) ‘An Annotated Guide to the Victorian Charter of Human Rights and
The right Charter ICCPR
| Recognition before the law | s 8(1) | Art 16 |
| Enjoyment of rights without discrimination | s 8(2) | Art 2(1) |
| Equality before the law | s 8(3) | Art 26 |
| Right to life | s 9(1) | Art 6(1) |
| Freedom from torture and cruel, inhuman or | s 10 | Art 7 |
| degrading treatment or punishment | ||
| Freedom from forced work | s 11 | Art 8 |
| Freedom of movement | s 12 | Art 12 |
| Privacy and reputation | s 13 | Art 17(1) |
| Freedom of thought, conscience, religion and | s 14 | Art 18(1) and (2) |
| belief | ||
| Freedom of expression | s 15 | Art 19 |
| Freedom of assembly | s 16(1) | Art 21 |
| Freedom of association | s 16(2) | Art 22(1) |
| Protection of families | s 17(1) | Art 23(1) |
The right Charter ICCPR
| Protection of children | s 17(2) | Art 24(1) |
| Right to participate in public affairs | s 18(1) | Art 25(a) |
| Right to vote and be elected | s 18(2)(a) | Art 25(b) |
| Right of access to the public service | s 18(2)(b) | Art 25(c) |
| Cultural rights | s 19(1) | Art 27 |
| Cultural rights of Aboriginal persons | s 19(2) | No equivalent provision |
| Right to property | s 20 | No equivalent provision |
| Right to liberty and security | s 21(1)-(7) | Art 9 |
| No imprisonment for failure to perform | s 21(8) | Art 11 |
| contractual obligations | ||
| Humane treatment when deprived of liberty | s 22 | Art 10(1)(2) |
| Rights of children in the criminal process | s 23 | Art 10(2)(b) and (3) |
| Right to a fair hearing | s 24 | Art 14(1) |
| The presumption of innocence and other | s 25 | Art 14(2)-(5) |
| rights in criminal proceedings | ||
| Prohibition on double jeopardy | s 26 | Art 14(7) |
| Prohibition on retrospective criminal laws | s 27 | Art 15 |
167 As to the second matter, the standard or usual approach to statutory construction entails favouring an interpretation which produces the least infringement on common law rights. In R v Secretary of State for the Home Department; Ex parte Pierson,[50] Lord Steyn described this approach as ‘the principle of legality’. This was the approach adopted by the majority in RJE v The Secretary to the Department of Justice (RJE)[51] in construing ‘likely’ in s 11(1) to mean more likely than not.
[50] [1998] AC 539
[51] [2008] VSCA 265
168 The right to personal liberty is one of the common law freedoms protected by the operation of this principle.
169 As Brennan J observed in R v Bolton and Another; Ex parte Beane:
“The law of this country is very jealous of any infringement of personal liberty and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right… Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.” (citations omitted)[52]
[52] (1987) 70 ALR 225 at 231 – 232; Also see R v Peterson; Ex Parte Hartmann [1969] VR 417
170 The right to privacy and to protection from trespass are also protected by this common law doctrine.
171 In Coco v R[53] the High Court held that the Invasion of Privacy Act 1971 (Qld), which authorised the use of listening devices in certain circumstances, did not confer a right on a judge to authorise entry onto premises for the purpose of installing and maintaining
a listening device, where to do so would otherwise constitute a trespass.
[53] (1994) 179 CLR 427 esp at 436 - 437
172 Similarly, in Morris v Beardmore[54] the House of Lords refused to read general language in the Road Traffic Act 1972 (UK) as being sufficient to authorise the police to enter the home of a person involved in an accident and require that person to submit to a breath
test. Lord Scarman said, at 465:
“the appeal turns on the respect which Parliament must be understood, even in its desire to stamp out drunken driving, to pay to the fundamental right of privacy in one’s own home, which has for centuries been recognised by the common law.”
[54] [1981] AC 446
173 The principle of legality has also been applied to protect other fundamental common law rights, such as the right to freedom of expression[55] and to peaceful protest in a public place.[56]
[55] Brown and Others v Memvers of the Classification Review Board of the Office of Film Literature Classification (1998)
[56] Director of Public Prosecutions v Jones [1999] 2 AC 240 at 257, 259, 280 and 287
174 In Electrolux Home Products Pty Ltd v Australian Workers Union[57] Gleeson CJ explained the rationale for the principle in these terms:
Coco [58]
“The joint judgment in went on to identify as the rationale for the the principle of legality which governs the relations between parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.”
presumption against modification or abrogation of fundamental rights an
assumption that it is highly improbable that Parliament would “overthrow
fundamental principles, infringe rights, or depart from the general system of law”
without expressing its intention with “irresistible clearness”. In R v Home
[57] (2003) 209 ALR 116 at [21]
[58] Also see R v Home Secretary; Ex parte Simms 92002) 2 AC 115 at 131 per Lord Hoffman; cited with approval by
175 There can be no doubt that a human rights focussed interpretation is enlivened in this case. The making of an ESO has a profound effect on the human rights of the person to whom the order is directed. ‘Monitoring’ is an understatement of the restrictions imposed on a person subject to an ESO. As Callaway AP observed in TSL v Secretary to the Department of Justice:[59]
“A person subject to an extended supervision order is a prisoner in all but name.”
[59] (2006) 14 VR 109 at [10]
176 In RJE, Nettle JA had no difficulty concluding that the mandatory conditions in an ESO impose limits on an offender’s right to move freely within and without Victoria and right to privacy, if not his or her right to liberty.[60]
[60] [2008] VSCA 265 at [119]
177 It is apparent from the earlier review of the practical operation of the scheme that about half the offenders subject to ESO are, for all practical purposes, confined within the Ararat facilities. Those offenders are subject to a curfew (between 8pm and 7am), monitored electronically and may not leave the facilities except in the company of a Corrections Victoria escort. Not surprisingly none of the current residents in the Ararat facilities are in paid employment.
178 Of the 41 offenders subject to an Interim ESO or an ESO, 38 are subject to a curfew conditions, 36 are subject to electronic monitoring and 39 are subject to a direction that they must reside at a particular location and must not move without the prior written consent of the Secretary.
179 It is important to bear in mind that these restrictions are being imposed in circumstances where the offenders have served the sentence imposed in respect of the ‘relevant offence’ which they committed. Absent the imposition of an ESO they would be entitled to their freedom.
180 I now turn to the task of ascertaining the meaning of s 11 of the Act by the application of the standard or usual principles of statutory construction.
3.2 Step One: Interpretation by applying the standard or usual principles of
construction181 For present purposes the relevant parts of s 11 are as follows:
“11 When may a court make an extended supervision order?
(1) A court may only make an extended supervision order in respect of an
offender if it is satisfied, to a high degree of probability, that the offender is
likely to commit a relevant offence if released in the community on
completion of the service of any custodial sentence that he or she is serving,
or was serving at the time at which the application was made, and not made
subject to an extended supervision order.(2) The Secretary has the onus of proving the existence of the likelihood
referred to in subsection (1).(2A) For the purposes of subsection (1), an offender is likely to commit a relevant
offence if there is a risk of the offender committing a relevant offence and
that risk is both real and ongoing and cannot sensibly be ignored having
regard to the nature and gravity of the possible offending.(2B) For the avoidance of doubt, subsection (1) permits a determination that an
offender is likely to commit a relevant offence on the basis of a lower
threshold than a threshold of more likely than not.(3) In determining whether the offender is likely to commit a relevant offence in
the circumstances described in subsection (1), the court must, subject to
subsection (5), have regard to –
(a) any assessment report filed in court, whether by or on behalf of the Secretary or the offender; and (b)
[159] Assessment Report 1 p 31
402 AB’s first offence specific treatment occurred in 1992 following his first offences. He attended Brunswick Community Forensic Mental Health and was assessed by Dr Paul Mullen, Director of Forensic Psychiatry.
403 Between 1995 and 1997 AB attended 30 appointments at a Community Forensic Mental Health centre. He is reported to have participated in both individual and group treatment and was reported to be punctual and willing to engage. In a report dated 5 July 1995 he
was said to have made “excellent progress to date” and being able to adapt both cognitively and behaviourally. The focus of therapy at this time was reported as promoting AB’s feelings of social competence and self worth, and to educate him about
female roles and expectations. A further focus has been an attempt to eliminate deviant
sexual fantasies and to equip AB with strategies to assist him from re-offending in the
future. It is reported that at the end of treatment he was in a relationship with a female
and no longer socially isolated. He was reporting no longer having compulsive urges to
offend and his deviant fantasies had diminished “to a point where they can only be
activated by summonsing them up through protracted conscious effort”.404 In 1999 AB was assessed by the CORE Sex Offender Programs (now Corrections Victoria) and it was recommended that he participate in the community based treatment program. AB did not participate in the program as his order was cancelled by application.
405 In 2000 whilst serving a community disposition AB was scheduled to commence Sex Offender Programs at Corrections Victoria, Carlton on 1 March 2002. AB appealed his conviction and his appeal was allowed, and hence did not commence the program.
406 Between December 2001 and March 2002 whilst on parole AB again attended Forensicare on a weekly basis. AB was able to continue to attend on a voluntary basis however, elected not to continue to attend citing work demands as his reason.
407 AB attended assessment for the COATS Program in December 2001 and reported that he had also completed drug and alcohol programs in gaol at HM Prison Beechworth and completed the Alchemay Program at HM Prison Ararat in June 2005. He also attended Alcoholics Anonymous and Narcotics Anonymous while at HM Prison Beechworth, HM Prison Ararat, Port Phillip Prison and Marngoneet Correctional Centre.
408 AB participated in the Modular Management and Intervention Program offered by Sex Offender Programs, Corrections Victoria commencing in May 2007 and completed in December 2007, having attended a total of 141 hours of treatment over a period of 47 sessions. AB is reported to have attended all sessions and appeared engaged in the treatment process. Generally, AB was considered to behave immaturely in his interactions with others with a tendency to use inappropriate humour as a means to diffuse conflict or to assuage feelings of discomfort. He was noted to use verbal aggression towards others, however, it is reported that this may be representative of some improvement in his general regulation skills as previously he would have responded with physical aggression. In summary, it was hypothesised that AB’s offending behaviour represented a convergence of facts related to beliefs of sexual entitlement, intimacy deficits, abandonment and rejection issues, social skill deficits and emotional dysregulation.
409 AB has had an engagement with treatment over time. Assessor 2 did not draw an adverse inference from the fact that in 1999 he sought the cancellation of a CBO and did not pursue voluntary treatment at that time – he had prioritised employment over therapy:
“…it’s very difficult for them to gain jobs and we recognise that employment is a
stabilising factor that may reduce re-offending rates”.[160]
[160] Tn p 299 Lines 8-31, p 300 Lines 1-6
Assessor 2 says that AB has actively participated in treatment whenever it has been offered.[161]
[161] Exhibit R2 at para 43
411 Assessor 2 also said that AB appeared to be motivated to engage voluntarily in treatment but that ‘He might, in fact, not go forward with that treatment if he perceives in the future that he doesn’t want to’.[162]
[162] Tn p 320
The effect of any treatment programs (s 8(1(d))
412 In the Treatment Report dated 28 March 2008 it is said that at completion of treatment it was considered that AB remained a High risk of future sexual offending.
413 Assessor 1 is of the opinion that despite engagement in extensive and varied treatment attempts it is evident that treatment has had little impact on curbing AB’s sexual offending and to date has been ineffective. Assessor 1 notes that AB has not been recently assessed for anti-androgen medication and it is recommended that this be considered.[163]
[163] Assessment Report 1 p 31
414 Assessor 2 notes that there is no sense in which AB has avoided treatment when it has been offered however:
“… the reports by treating clinicians indicated that his behaviour in groups was immature, and it is not clear that he has gained a great degree of insight into his offending or developed strategies which would be highly effective in reducing
[164]
[164] Exhibit R2 at paras 43-44
future risk. This appears to reflect AB’s deficits rather than efforts to resist treating compulsive behaviour, or anti-androgen treatments. The materials are conflicting, but AB denies that he has had such treatment in the past. I would strongly recommend that he be formally assessed for pharmacological treatments, which in conjunction with ongoing psychological input are likely to reduce his risk of further offending significantly.”
treatment. In addition, offence-specific treatment occurring after a number of years
of incarceration may not enable AB to recall and generate the conditions which
occur at the time of offending, and he has had no opportunity since undergoing the
Sex Offender Program to utilise any cognitive strategies.
Relevant background factors (s 8(1)(e))
415 Assessor 1 observes that AB appeared to experience his family of origin as somewhat distant, uncommunicative and uncaring. He appears to hold core beliefs about the role of women and how men are required to conceal their emotions. AB experienced an
incident of abusive sexual contact perpetrated by an older female cousin during his
developmental period and has been exposed to the traumatic death of his father which
he witnessed and continues to feel guilty for. These circumstances mediated by his
personality characteristics have in some way contributed to the development and
maintenance of AB’s offending behaviour.[165][165] Assessment Report 1 p 32
416 AB reported a troubled relationship with his father during his adolescence, however after leaving school and joining the family business this relationship is said to have improved. AB appeared to have experienced his developmental period as being
| characterised by a lack of intimacy from his family, evidenced by lack of affection from his parents together with limited communication. He appears to believe that it is not acceptable for males to express emotion. |
| 417 |
His father died in a work place accident. In his interview with Assessor 1 AB stated that accident he was engaged in other duties and his father undertook to dismantle and clean the machine. Sometime later AB reported that he “heard the machine start up” but it was making an unusual noise. Realising his father had not assembled the machine properly he went to investigate and witnessed his father being crushed by the machinery. AB appears to believe that because he had not attended to the task he is directly responsible for his father’s death.
418 AB left school at age 17 whilst in year 11 to commence work in the family business. His academic performance was average and he was required to repeat year 9 after performing poorly due to truancy. His last year of school was characterised by frequent truancy due to his experimentation with cannabis and alcohol. He has had an unstable work history, characterised by periodic short-term employment in various positions interspersed by sporadic employment in the family business.
419 He has also tended to struggle with social relationships, particularly with women.
420 AB reported his first sexual experience occurred with his female cousin. He reported that she used to visit his family home and while there would sleep in his room. He reported that whilst in bed they would hug and kiss and he “loved the attention” apparently as he had “no direct attention from mum”. He reported a “vague memory” of his cousin having touched his penis. AB’s report of this encounter to Assessor 2 differs in significant respects. AB told Assessor 2 that ‘he was molested by a female cousin when she was aged around 16 and he was aged five. …this took place on two occasions when she got into bed with him and fondled him’.[166]
[166] Exhibit R2 at para 6 Exhibit R2 at para 44
421 While AB has had an extensive history of contact with mental health professionals specific to his sexual offending history he does not have any general mental health concerns.
422 Assessor 2 was of the opinion that as a result of early exposure to sexual abuse AB appears confused about appropriate sexual behaviour. This coupled with his general lack of social skills appears to have led to AB avoiding developing intimate relationships and avoidance of displays of emotion.
Factors that can increase or decrease any identified risks (s 8(1)(f))
currently at high risk of future offending
423 In Assessor 1’s opinion the existence of an established consenting sexual relationship appears to decrease the likelihood of AB’s offending, however difficulties within a relationship or absence of one, increase the re-offence probability.[167] In terms of AB’s likely response to treatment, Assessor 2 says:
[167] Assessment Report 1 p 32
“Recurrent exhibitionists often respond well to treatment with medication aimed at
treating compulsive behaviour or anti-androgen treatments … I would strongly
recommend that he be formally assessed for pharmacological treatments, which in
conjunction with ongoing psychological input are likely to reduce his risk of further
offending significantly.”[168]
[168]
424 Assessor 2 also notes that AB’s risk is likely to be decreased by the provision of medication to reduce compulsive behaviours and sexual drive, by a structured and supported social environment and by ongoing psychological support to assist with problem solving and resolution of conflict or stressors.
The assessment of risk (s 8(2))
425 Assessor 1 concludes her report with the following opinion regarding the likelihood that AB will offend in the future:
“Consideration of AB’s history and current situation against empirically
determined static and dynamic risk factors suggest that AB remains at High risk of
sexual re-offending.
Social skills and intimacy deficits and subsequent lack of social supports contribute term supervision and intervention.”
to this risk. Impulse control difficulties including a history of alcohol abuse and
alcohol consumption also increase his risk.
AB has been unable to demonstrate any strategies to contain his arousal or
offending. He has not in the recent past been treated using anti-androgen
medication and it is the writer’s opinion that anti-androgen treatment should be
considered. Supervision by way of community orders has not previously deterred
AB from re-offending.
426 On the basis of the Risk Assessment Protocol, AB’s specific psychological profile and offending history Assessor 2 concludes his report with the following opinion:
“… it is my opinion that he is . This risk benefit AB. Finally, he should remain abstinent from substance abuse. AB is likely to benefit from supervision. While he was receiving community supervision in the late 1990’s, he appeared to have remained out of custody for two years. In general the risk of offending diminishes with increasing age, and it may well be that with a package of care his offending risk is significantly attenuated. It is not possible to predict how long AB will benefit from intervention.”[169]
[169] Exhibit R2 at paras 47-48
will likely be diminished with ongoing psychological treatment and with the
prescription of medication to address his sexual offending. The latter intervention
has not been tried with AB in the past. He has been treated in the community on
one occasion in the past with apparent benefit sustained for the duration of that
treatment.
(i) AB has a long history of offending, prior to the index offence he has had 27 convictions from eight court appearances between 1995 to 2001. Many of these convictions were for sexual offences. AB has consistently struggled with remaining offence free. Relapse and re-offending have been the primary cause of AB’s breaches of orders and, according to Assessor 1, are necessarily indicative of lack of co-operation with supervision. Three out of four occasions upon which he was ordered to be subject to a CBO or Intensive Corrections Order he breached those orders. And he breached parole.[172] (ii) [172] Tn p 318 Lines 13-17
5.4 Conclusion 427 The issue for determination is whether AB is likely to commit a relevant offence if released in the community and not made subject to an ESO. That issue requires an assessment to be made of the nature and gravity of the possible offending.
428 The ‘relevant offences’ which AB has a propensity to commit in the future are exhibitionist offences and indecent assaults. Assessor 2 observed that the type of offending which AB has engaged in is lower than that of some offenders he is treating, but he accepts that is a subjective judgement[170] and he does not dispute that the effect of AB’s offending on the victim was grave.[171]
[170] Tn p 308 Lines 13-31, p 309 Lines 1-15
[171] Tn p 326 Lines 5-8
429 AB’s potential offending is moderately grave, it is not at the higher end of relevant offences. It therefore follows, based on the construction of s 11 adopted earlier, that in the context of this case the expression ‘likely to commit’ in s 11(1), means more likely than not.
430 I am satisfied – to a high degree of probability – as to the following matters:
• there is a risk of AB committing a relevant offence and that risk is both real and ongoing and cannot sensibly be ignored having regard to the nature and gravity of the possible offending; and • it is more likely than not that AB will commit a relevant offence if released in the community and not made subject to an ESO. 431 I have reached the requisite level of satisfaction having regard to the assessment reports and, in particular, the following matters:
AB’s correctional history suggests that he experiences difficulties with general incidents for example, using obscene language, hiding a remote control device, possession of excess of cutlery including knife, and having tablets concealed in a bed frame. He has been charged on several occasions with incidents of using verbally abusive and threatening behaviour towards prison officers. It is noted that AB almost universally resorts to sexually explicit verbal abuse suggesting that prison officers “suck my cock”. There is significant evidence of hostility and verbal aggression directed towards correctional officers and failure to attend appointments which evidence a lack of cooperation with supervision. Despite these incidents I also note that AB has received good work and conduct reports.
(iii) AB has poor self control in terms of his impulsiveness and poor self regulation and interpersonal and intimacy deficits.[173]
[173] Tn p 321 Lines 24-27 and p 322 Lines 11-12
(iv) AB has an ongoing need for psychological treatment in order to reduce his risk of reoffending. The only time AB has availed himself of treatment has been under a court mandate or as a condition of a community based order, an intensive
corrections order or parole.[174]
[174]
(v) Both assessors conclude that AB currently has a high risk of reoffending.
432 It follows that the test in s 11(1) has been met and the court is empowered to make an ESO. Having regard to all the circumstances it is appropriate that such an order be made in this case. While a discretion exists not to make the order sought, this is not the occasion to exercise that discretion.
433 I now turn to the terms of the order to be made, including the duration of the order and the period before the first review.
6. The Order
6.1 General
434 An ESO must state that the court is satisfied that the offender is likely to commit a relevant offence if released in the community and not made subject to an ESO. The order must also state:
- the name of the offender; - the date on which the order is made and the date on which it commences; - the period of the order; - the conditions of the order; - the latest date by which the first review of the order must be undertaken and the
maximum intervals between subsequent reviews (s 12(2)).435 An ESO must be signed by the judge comprising the court that made it and include his or her name (s 12(2)).
436 In the circumstances of this case any ESO made will commence on the commencement date specified in the order (s 13(2)).
437 If a court makes an ESO, it must also determine the period of the ESO (which must not exceed 15 years) and specify that period in the order (s 14(1)).
438 A review period must also be specified (s 12(2)(f)).
439 An ESO must have all of the conditions set out in s 15(3). These conditions are that during the period of the order the offender must:
(a)
not commit, whether in or outside Victoria, another relevant offence or an offence that, if committed in Victoria, would be a relevant offence;
(b)
attend at any place as directed by the Secretary or the Adult Parole Board for the purpose of supervision, assessment or monitoring;
(c)
report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of this paragraph;
(d)
notify the Secretary of any change of name or employment at least 2 clear working days before the change;
(e) not move to a new address without the prior written consent of the Secretary; (f)
not leave Victoria except with the permission of the Secretary granted either generally or in relation to the particular case;
(g)
obey all lawful instructions and directions of the Secretary given under section 16(1);
(h)
obey all lawful instructions and directions of the Adult Parole Board given under section 16(2).
6.2 Duration of the ESO 440 The period of the ESO must not exceed 15 years and the period of the order must reflect the period that the court is satisfied, to a high degree of probability, that the offender will be likely to commit a relevant offence, unless subject to supervision.[175]
[175] ARM v The Secretary to the Department of Justice [2008] VSCA 266 at [13]
441 The Secretary seeks a 15 year period of operation.
442 I am not persuaded that a period of that duration is warranted.
443 The evidence suggests that AB will require treatment for up to five years.
444 Assessor 1 said it was ‘hard to predict’ the duration of supervision and treatment required in AB’s case but from a clinician’s perspective looking at his history and the treatment he has received she says that ‘intervention, at a minimum, another five odd years’.[176]
[176] Tn p 80 Lines 28-31, p 81 Lines 1-7
445 In Assessor 2’s opinion AB will require treatment for a considerable period of time, he did not nominate a specific period but suggested that it would be years rather than months.[177] He accepted that any assessment of the period required for treatment is speculative but his impression is that AB ‘would require at least a couple of years more treatment’.[178]
[177] Tn p 329 Lines 5-8
[178]
446 In referring to AB’s treatment requirements I wish to make it clear that I am not determining the duration of the order to ensure that AB has access to treatment programs. The purpose of the order is to protect the community, it is not made for a therapeutic purpose. As Callaway AP said in TSL:
“although one of the purposes of the mandatory conditions in s 15(3) is to promote
the rehabilitation, and the care and treatment, of the offender, the desirability of
treatment must not be allowed to obscure the main purpose of the Act in s 1 or the
threshold test in s 11(1).”
447 AB’s engagement in treatment is likely to reduce his risk of reoffending. When he has engaged in treatment in the past he has not reoffended. Further, an international committee of experts (the Collaborative Outcome Data Project Committee) has concluded that current psychological treatments are associated with reductions in both sexual and general recidivism. After an average of 4-5 years of follow up, 10 per cent of the offenders in the treatment groups had reoffended sexually, compared to 17 per cent of the non treatment groups. I note however that the Committee cautioned that more and better research is required before firm conclusions can be reached about the effectiveness of treatment.[179]
[179] Exhibit A3 at para 70
448 It is also relevant to note that most long term studies suggest that the rate of sexual reoffending goes down over time. For example a study of sexual offenders released from prison in England and Wales showed that a quarter of the offenders (24.6%) were reconvicted of a sexual offence over the 21 year period of the study. But the rate of reoffending was highest (15.8%) in the first five years after release and thereafter the rate of reoffending diminished such that the cumulative rate at 10 years was 20 per cent and was 24.6 per cent at 21 years.[180]
[180] Cann J, Falshaw L and Friendship C (2004) ‘Sexual offenders discharged from prison in England and Wales: A 21
449 Other studies report similar results.[181] But not all sexual offenders present the same level of risk over time. Dr Vess suggests that those who pose the most serious long term risk of reoffending against children are those with a sexual deviance is combined
[181] For example, a study by Hanson, Morton and Harris in 2003 found that the proportion of new recidivists was 14 per
with high levels of psychopathy.[182] AB does not exhibit those characteristics.
[182] Exhibit A3 at para 81
450 In his oral evidence Dr Vess referred to a ‘survival curve’ which plots how many sexual offenders reoffend over time. The steepest part of the curve is typically in the first 6 years after release, that is the bulk of the reoffending occurs in that period and thereafter there is a diminishing rate of reoffending.[183]
[183] Tn pp 193-194 and p 199; Exhibit A3 at pp 73-82
451 A minimalist approach should be taken to the determination of the duration of an order. The court should exercise its discretion by setting a duration which is the minimum period necessary in order to meet the objects of the Act. Such an approach will limit the impact on the human rights of the person subject to the order.
452 The order in this case should operate for a period of 5 years. I am satisfied, to a high degree of probability, that such a period reflects the period that AB will be likely to commit a relevant offence unless subject to supervision. In reaching such a level of satisfaction I have had regard to the following matters:
•
AB’s engagement in treatment is likely to reduce his risk of reoffending and he will require treatment for a considerable period, while any assessment of the period required for treatment is speculative, the assessors in this case estimate the required period to be between a ‘couple of years’ and ‘another five odd years’; and
•
most long term studies suggest that the rate of sexual reoffending goes down over time and the highest risk is in the first 5 to 6 years immediately after release.
6.3 The review period
453 The order must state the latest date by which the first review of the order must be undertaken and the maximum intervals between subsequent reviews (s 12(2)(f). The first review must be undertaken no later than 3 years after the order was first made, or any earlier review date specified in the order (s 21(1)(a)). Subsequent reviews are to take place at intervals of no more than 3 years or any shorter interval specified in the order (s 21(1)(b)).
454 There is a current controversy about whether, on a review, the court has power to order that a subsequent review take place at an interval which is less than that specified in the ESO, having regard to the terms of s 21(1)(b). In the present proceedings it is common ground that if an ESO is made then the issue can be avoided if the part of the order
which specifies the interval for subsequent reviews includes the phrase: ‘or any other
period specified by a judge of the court on review’.455 In the circumstances of this case a shorter period than 3 years should be specified for the first review. On Assessor 1’s evidence, AB has shown a ‘fairly significant change to the positive and to his credit’ in the period since his initial assessment in 2008[184] and Assessor 2 suggests that he requires further treatment for ‘a couple of years’. Having regard to these matters I propose to require that the first review be conducted 2 years after the commencement of the order.
[184] Tn p 89 Lines 21-31
Judge I J K Ross
regulations expire on 29 December 2009.
Tn 268 Lines 21-27
26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 and 41.
34, 36, 37, 38, 39 and 41.
36 [2009] VCAT 646 (23 April 2009)
Others v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154
ALR 67, and the authorities cited at p 78
Practitioners’Board of Victoria (2006) 15 VR 22 at 38-39 per Maxwell P.
Responsibilities’, Law Book Co. table of comparable international human rights law provisions at (xv) – (xvii).
154 ALR 67 at 76; Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 551)
Gleeson CJ in Plaintiff 5157/2002 v The Commonwealth (2003) 211 CLR 476 at [30], Kirby J in Daniels Corporation
v ACCC [2002] 213 CLR 543 at 582 and Vickery J in Nolan v MBF Investments Pty Ltd [2009] VSC 244 at [182].
a power, it means that the power may be exercised, or not, at discretion. See also R v Moffatt [1998] 2 VR 229 at 234
per Winneke P and 246-247 per Hayne JA’; and TSL at [7[ per Callaway AP0.
JA and Coldrey AJA agreed.
and Western Australia v Latimer [2006] WASC 235 at [16]
principle which is regarded as more compelling in circumstances where the words in question have been added by amendment, as is the case here: Transport Accident Commission v Treloar [1992] 1 VR 447 at 462 per Brooking J
CLR 625 at 635-636.
Minister for Environment (No 3) (1997); Australian Competition and Consumer Commission v Leelee Pty Ltd [1999]
FCA 1121; Edwards v Giudice and others (1999-2000) 169 ALR 89
Review 295 at 297 in which Lord Walker says that the words ‘consistently with their purpose’ have been read into s 3
of the UK Act as a matter of interpretation. Contra: Brennan, The Hon Sir Gerard Brennan, ‘Introduction to Human
Rights Law’ (2007) 81 Australian Law Journal 248 at 252-253. See generally: Pound A and K Evans (2008) An
Annotated Guide to the Victorian Charter of Human Rights and Responsibilities’, Law Book Co, at [4760].
scales’, Law and Human Behaviour, 24, pp 119-136
American Psychological Association. Cited in Dr Vess’ report at paras 29-30, Exhibit A3.
Psychology, Public Policy and Law, 4, pp 50-72; and Hanson RK and Thornton D (2000), ‘Improving risk assessment
for sex offenders: A comparison of three actuarial scales’, Law and Human Behaviour, 24, pp 119-136.
(Tn p149-150) – the only thing he would change would be ‘anticipated to re-offend based on observations of a similar
group in the past’ (Tn p151 at lines 18-26).
Assessment Report 1 p 31
Tn p 318 Lines 4-12
Tn p 334 at Lines 19-24
year reconviction study’ in Legal and Criminal Psychology, 9, pp 1-10
cent in the first five years after release, compared to 3 per cent during the period 15 to 20 years after release, Exhibit
A3 at para 77.
2
15
0