Secretary to the Department of Justice v Fletcher (No 2)

[2015] VSC 664

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2011 2639

IN THE MATTER of the Serious Sex Offenders (Detention and Supervision) Act 2009

and

IN THE MATTER of an application under s 65 of the Act for Review of a Supervision Order

and

Secretary to the Department of Justice and Regulation

Applicant

v  

Robin Angus Fletcher

Respondent

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JUDGE:	Priest JA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2015
DATE OF JUDGMENT:	24 November 2015
CASE MAY BE CITED AS:	Secretary to the Department of Justice v Fletcher (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 664

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Serious Sex Offenders (Detention and Supervision) Act 2009 — Application by Secretary for continuation of a supervision order — Relevant conditions — Supervision order not revoked.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC	Victorian Government Solicitor
For the Respondent	Mr A C L Marshall	Stary Norton Halphen

HIS HONOUR:

1. Pursuant to s 65(1) of the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the Act’), the Secretary to the Department of Justice and Regulation (‘the Secretary’ or ‘the applicant’) seeks the review of a supervision order relating to Robin Angas Fletcher (‘RAF’ or ‘the respondent’) made in this Court by Weinberg JA on 8 June 2011 (‘the order’).[1] 

   [1]Secretary to the Department of Justice v Fletcher [2011] VSC 335R.

1. By virtue of s 71(a) of the Act, one of the purposes of a review is to determine whether the order should remain in operation or be revoked. The Secretary seeks that the order not be revoked and remain in operation.

1. In reviewing the order, by s 72 the Court is required to consider any progress report relating to the respondent;  any other report or evidence from a medical expert;  any report by the Secretary, Director of Public Prosecutions or Adult Parole Board;  any previous assessment or progress reports filed;  any submissions made by the parties; and ‘anything else that the court considers appropriate’.

1. Section 73(1) provides that on a review, the Court must revoke the supervision order unless satisfied that the respondent ‘still poses an unacceptable risk of committing a relevant offence if a supervision order is not in effect and the offender is in the community’.[2] If the Court does not revoke the supervision order, s 73(8) requires the Court to confirm it, subject to the power reposing in s 73(9) to vary, add to or remove any conditions of the order or to direct a different period for the period between applications for review.[3]

   [2]Section 73(3) also provides for the possibility of a detention order being made, but no such order was sought.

   [3]See also s 78.

1. In deciding whether to revoke or confirm the order, s 73(2) makes plain that ss 9(2), (4), (5) and (6) of the Act apply (with any necessary modifications). Hence, among other things, before confirming the supervision order the Court needs to be satisfied that the respondent poses an unacceptable risk of committing a relevant offence[4] if it is not confirmed and he is in the community.  Further, the Court must be satisfied ‘by acceptable, cogent evidence’ and ‘to a high degree of probability’ that ‘the evidence is of sufficient weight to justify the decision’.  In determining whether or not the offender poses an unacceptable risk, the Court must not consider the means of managing the risk or the likely impact of the order on the respondent;  and the Court may determine that the respondent poses an unacceptable risk of committing a relevant offence even if the likelihood that he will commit a relevant offence is less than a likelihood of more likely than not.  The burden of establishing that the respondent poses an unacceptable risk of committing a relevant offence is on the Secretary.

   [4]Relevant offences are spelled out in Schedule 1. 

1. As I earlier mentioned, on 8 June 2011, Weinberg JA made a supervision order with respect to the respondent.  Later, on 30 September 2014, his Honour declined to revoke the order.[5] Further, on 16 October 2014, his Honour ordered that the order of 8 June 2011 not be revoked, and made other orders under s 73(9) of the Act. His Honour’s orders required the Secretary to apply for a review under Part 5 of the Act by no later than 31 August 2015.

   [5]Secretary to the Department of Justice v Fletcher [2012] VSC 490R.

1. In the result, on 1 September 2015, the application for review came before me. At that time, counsel for the respondent did not dispute that the order should continue, but submitted that there should be a variation of the relevant conditions.  Both parties indicated that they may wish to rely on further material, and I was told that it might be necessary for some oral evidence to be received.  I accordingly fixed the further hearing of the application for today’s date, and, among other things, made orders requiring the applicant to file and serve any list of suggested conditions of the supervision order, and copies of any further reports or any other material upon which the applicant intended to rely;  and requiring the respondent to file and serve any notice of intention to dispute the whole or any part of an assessment report or other report made to the Court or filed with the application for review, copies of any reports and any other material upon which he intends to rely and any submissions as to the suggested conditions.

1. By the time the matter came before me today, the matter had largely resolved.  The respondent and his advisors are to be commended for the sensible and pragmatic approach that they adopted.  As it transpired, the only source of controversy related to the completion of a SAAG (Support and Awareness Group) booklet.  In essence, RAF wished his answers given in completion of the SAAG booklet be audio recorded, and that such audio recording be provided to his solicitor.  A condition was sought to formalise the proposed process.  The Secretary opposed the addition of a condition which would mandate the procedure proposed by the respondent. 

1. I have no reason to conclude that any person given the task of completing the SAAG booklet would not do so accurately, faithful to the respondent’s answers to questions asked. But more fundamentally, in my view the imposition of a condition such as that proposed by the respondent is not authorised by s 77(3), or by ss 73(9) or (10) — which pick up s 15 — of the Act. Counsel for the respondent, Mr Marshall, sought to invoke s 19(a); but, in my view, the proposed condition is not one appropriate ‘to reduce the risk of re-offending by the offender’. I will not impose a condition of the kind sought by RAF.

1. Based on the material — in particular, the progress report of Dr Karen Owen dated 22 April 2014 — I am satisfied pursuant to s 73(1) of the Act that RAF still poses an unacceptable risk of committing a relevant offence if a supervision order is not in effect and thus that the supervision order made on 8 June 2011 should not be revoked. Moreover, apart from the core conditions required by s 16 of the Act, I am satisfied that the other conditions imposed constitute the minimum interference with RAF’s liberty, privacy and freedom necessary in the circumstances to ensure the reduction of a risk of relevant re-offending, and that they are reasonably related to the gravity of the risk of re-offending. I will make orders conformably with the draft provided by the Secretary, including the suggested amendment to condition 4.6.