The Secretary to the Department of Justice and Regulation v Robin Angas Fletcher

[2017] VSCA 44

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0015

THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION	Appellant
v
ROBIN ANGAS FLETCHER	Respondent

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JUDGES:	MAXWELL P, REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2017
DATE OF JUDGMENT:	10 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 44
JUDGMENT APPEALED FROM:	[2017] VSC 32 (Priest JA)

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CRIMINAL LAW – Appeal – Serious sex offender – Supervision order – Unacceptable risk – Degree of risk that offender will reoffend – Consequences if risk eventuates – Offender assessed as ‘moderate’ risk – Judge concluded ‘far more probable than not’ that he would not reoffend – Grave harm likely to result from sexual offending – Whether unacceptable risk – Judge revoked supervision order – Whether ‘plainly wrong’ – Conclusion reasonably open – Appeal dismissed – Nigro v Secretary to the Department of Justice (2013) 41 VR 359 applied – Serious Sex Offenders (Detention and Supervision) Act 2009 ss 9, 97, 101.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Grace QC with Mr A Dinelli	Victorian Government Solicitor’s Office
For the Respondent	Mr C Carr	Stary Norton Halphen

MAXWELL P

REDLICH JA
BEACH JA:

Summary

1. The respondent (‘RAF’) was convicted in 1998 of sexual offending against two girls aged 15.  He was sentenced to 10 years’ imprisonment, with a non-parole period of eight years.

1. On his release from prison in June 2006, RAF was made the subject of a supervision order under the predecessor of what is now the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the Act’).  That order has been in force continuously until now.  In the present proceeding, Priest JA (sitting in the Trial Division) refused the Secretary’s application for renewal of the supervision order, and revoked it.

1. The power to make a supervision order under the Act is enlivened if, and only if, the Court concludes that there is an ‘unacceptable risk’ of the offender committing a relevant offence if an order is not made.[1]  The legislature has determined that the existence of an unacceptable risk may justify an order for detention and/or supervision notwithstanding that the offender has already served the sentence imposed for prior offences.

   [1]The Act s 9(1).

1. In the present case, the judge was not persuaded that RAF posed an unacceptable risk.  He concluded that it was ‘far more probable than not’ that RAF would not offend again.[2]  Nor, his Honour found, was there any evidence that the harm which would result if he did reoffend was any greater than that associated with other sexual offending against children.  (The significance of this finding is considered in detail in these reasons.)

   [2]Secretary to the Department of Justice and Regulation v Fletcher [No 4] [2017] VSC 32 [67] (‘Reasons’).

1. The Secretary has appealed against the revocation of the supervision order, contending that his Honour was ‘plainly wrong’ in reaching the conclusion that RAF was not an unacceptable risk.  For the reasons which follow, we would dismiss the appeal.  It was well open to the judge, on the evidence before him, to reach the conclusion which he did.

1. As these reasons will explain, the position adopted by the Secretary on the appeal would have the consequence that a supervision order would need to be made whenever a child sex offender with a moderate risk of reoffending was about to be released from prison.  While a supervision order may be justified in such circumstances, the breadth of the Secretary’s position goes well beyond what the legislature provided for when it introduced the regime of post-sentence detention and supervision.

History of proceedings

1. As we have mentioned, RAF was sentenced in 1998 to 10 years’ imprisonment, with a non-parole period of eight years, for various sexual offences involving two young girls.  Bongiorno JA (who extended RAF’s supervision order in 2010) described the offending as follows:

Between about 1990 and 1996, [RAF] offered services as a drug abuse and sexual guidance youth counsellor.  He used premises in South Caulfield from which his then partner conducted another business.  It was whilst engaging in these activities that he met the two young girls who became the victims of the offences to which he pleaded guilty in 1998.  The offences occurred in 1996 when these two girls, aged 15 and exceptionally vulnerable as a result of their background, their behaviour and other social factors, were subjected to violent sexual acts.  These acts involved their being whipped and beaten on their naked backs and buttocks with objects including a riding crop, causing pain and physical injury.  In respect of one of these girls, [RAF] digitally penetrated her vagina, although later he claimed that he was adjusting her tampon so she would not suffer any extra discomfort in the course of the activity in which he was engaged.  He explained his behaviour as being part of a pagan ritual, justified by his religious beliefs which he described as ‘Wiccan’.  Subsequent to his arrest for these offences he sought the assistance of a fellow prisoner to have the two girls killed so that they could not give evidence against him.  It was in respect of this activity that he was charged
and pleaded guilty to attempting to pervert the course of justice.  Both girls suffered much as a result of these offences.[3]

[3]Secretary to the Department of Justice v Fletcher [2010] VSC 170 [61].

1. RAF has been under a supervision order since his release from prison on 12 June 2006.  He was the subject of an extended supervision order made by Gillard J on 12 June 2006;[4]  review of the order by Harper J on 23 June 2008;[5]  an extension of the order by Bongiorno JA on 30 April 2010 until 12 June 2011;[6]  and renewal of the order by Weinberg JA on 8 June 2011 for five years.[7]

   [4]Fletcher v Secretary to the Department of Justice [2006] VSC 354.

   [5]Secretary, Department of Justice v Fletcher [No 3] [2008] VSC 217.

   [6]Secretary to the Department of Justice v Fletcher [2010] VSC 170.

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

1. As the reasons of Weinberg JA in 2011 disclose, RAF did not oppose the renewal of the order at that time.  He merely challenged its duration.  The state of expert opinion at that time was markedly different from now.  Dr Karen Owen categorised RAF as presenting a high risk of reoffending.  Dr James Vess testified that RAF was not amenable to treatment due to his belief systems and that ‘unsupervised, RAF posed a high risk to the community’.  RAF’s risk level was characterised by Dr William Glaser as ‘more towards the high end of the moderate to high spectrum’.  Forensic psychologist Pamela Matthews gave evidence that RAF posed a moderate to high risk of future re-offending and that it was uncertain whether his increasing age was a factor that affected his risk, given the role that manipulation and control played in his offending.

1. Based on this evidence, Weinberg JA held that:

Mr Fletcher is dangerous because he is highly intelligent, apparently charismatic, manipulative, and capable of inducing teenage girls to engage in sexual acts of a depraved nature.  He shows no signs, at present, of insight into his past wrongdoing.  He is resistant to treatment, even assuming that any remedial measures could be of benefit to him.

That is not to say that Mr Fletcher’s prognosis is hopeless, or that he will always pose the same level of risk to young girls.  Much will depend upon his physical state and wellbeing, which appears to be declining, and his willingness to recognise that he has serious problems which must be addressed.[8]

[8]Ibid [35]–[36].

1. There were two further reviews of the order — on 30 September 2014, by Weinberg JA, and on 24 November 2015 by Priest JA.  On the latter occasion no revocation of the order was sought but certain conditions were varied.[9]  On 25 May 2016, Priest JA made an interim supervision order for four months, pending determination of the Secretary’s application for renewal of the order.  That interim supervision order was further extended until the determination of the application.  On 8 February 2017 the renewal application was refused by Priest JA and the supervision order was revoked.  Priest JA granted the Secretary a stay of those orders until the hearing of this appeal.  We extended the stay until the delivery of judgment.

   [9]Secretary to the Department of Justice v Fletcher [No 2] [2015] VSC 664 [10].

1. The Secretary relied upon two particulars in support of his ground of appeal.  The first was that the ‘evidence in its totality justified a conclusion that the offender posed an unacceptable risk’.  The second drew attention to the judge’s finding that

the possible consequences of any future relevant offending by [RAF] will be no greater than is generally experienced by adolescent female victims of aberrant sexual activity perpetrated by an adult male.[10]

According to the notice of appeal, this was

an ‘erroneous basis’ upon which the conclusion that [RAF] did not pose an unacceptable risk could be based and that in any event, such a finding justified a finding of unacceptable risk due to the inherent gravity of the harm caused by such offending.

[10]Reasons [78].

The statutory regime for supervision orders

1. We should briefly set out the statutory regime.  To make a supervision order the court must be ‘satisfied that the offender poses an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community’.[11]  A 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’.[12]

   [11]The Act s 9(1).

   [12]Ibid s 9(2).

1. The Act stipulates that the Secretary carries the burden of proving that the offender poses an unacceptable risk and that the means of managing the risk or the likely impact of a supervision order on the offender should not be taken into account.[13]  Specifically, an offender will pose an unacceptable risk ‘even if the likelihood that the offender will commit a relevant offence is less than a likelihood of more likely than not’.[14]

   [13]Ibid ss 9(4), (6).

   [14]Ibid s 9(5).

1. Under s 96 of the Act, a person in respect of whom a supervision order has been made may appeal against the making of the order. Under s 97, the Secretary may appeal against a refusal to make, or renew, a supervision order. It is the latter provision which has been invoked here.

1. The appeal is by way of rehearing.  The correct principles to be applied where the appellant challenges a determination as to ‘unacceptable risk’ were enunciated in Nigro v Secretary to the Department of Justice.[15]  In their joint reasons, Redlich, Osborn and Priest JJA said that, as the initial determination involves a qualitative assessment based on a matrix of fact and degree, a decision of this kind should not be disturbed unless it is found to be plainly wrong or wholly erroneous.[16]

   [15](2013) 41 VR 259 (‘Nigro’).

   [16]Ibid 365 [13], 371 [41].

1. As the joint reasons make clear, a distinction is to be drawn between an appeal challenging the conclusion on whether an offender constitutes an unacceptable risk and an appeal against the exercise of discretion to make a supervision order.  As we have said, the test to be applied to a finding as to unacceptable risk is whether the conclusion was ‘plainly wrong or wholly erroneous’.  As to the exercise of the discretion to make (or not make) an order, the principles in House v The King apply.[17]  Counsel for the Secretary accepted that this was so.

   [17]Ibid 376 [55], 377 [64].

1. As Nigro emphasised, the common law presumption in favour of the liberty of the subject underpins the nature of the predictive inquiry required under s 9:

The right to liberty and autonomy explains why the concept of ‘unacceptable risk’ should be interpreted so as to limit the enjoyment of that right only to the extent that is reasonably necessary to give effect to its legislative purpose.  Such an approach accords with the canon of construction that a statute which purports to impair a right to personal liberty is to be interpreted, if possible, so as to respect that right.[18]

[18]Ibid 378 [68].

1. The very concept of ‘unacceptable risk’ shows, as Nigro points out, that the statutory regime contemplates that some level of risk may remain acceptable even for offenders who have been imprisoned for the most serious of sexual offending.[19]  The joint reasons stated:

It is clear that the Act contemplates that some level of risk is acceptable in a democratic society that values the rights of an individual to freedom and privacy … it involves a balancing of the nature of the risk and the likelihood of its occurrence against the fundamental value which society accords to individual liberty. The risk must be of such an order and the consequences if it eventuates such as to require the individual’s liberty to be constrained in derogation of the value which society places on individual liberty.[20]

[19]Ibid 378 [69].

[20]Ibid 390 [113].

The expert evidence

1. The trial judge received reports and heard evidence from two clinical and forensic psychologists:  Dr Karen Owen, called by the Secretary;  and Professor James Ogloff, called by RAF.  In the following passages, we have set out some parts of their evidence, to which the trial judge made reference in his reasons.

1. Dr Owen had undertaken clinical reviews of RAF on some six occasions between 2006 and 2016.  In a report dated 28 February 2016, Dr Owen said that in interviews over the period April 2014 to January 2016 RAF had ‘appeared significantly less grandiose and more amenable to interactive discussion’.  She reported that, while his belief systems remained intact, he continued to appear ‘meaningfully more coherent and in touch with reality than in previous interviews’.  Dr Owen concluded from the Static-99 assessment that RAF’s Static score fell into the Moderate-Low risk category.  Based upon the Risk for Sexual Violence Protocol (RSVP) and his presentation over the period of the supervision order, Dr Owen concluded that RAF represents a moderate risk of sexual offending.  Given RAF’s history of sexual behaviour and his interests and beliefs, Dr Owen concluded that ‘further offending against underage male or female and/or adult male or female victims [is] not beyond the realms of possibility’.[21]

   [21]Reasons [32].

1. His Honour also referred to other parts of Dr Owen’s report in which she suggested that RAF’s patterns of behaviour would likely include ‘establishing himself as the leader of a group or church, targeting vulnerable people and providing counselling to them.’[22]  She said: ‘This is the exact scenario in which RAF has already established himself within the Church of Antioch’.[23]  Dr Owen considered it likely that RAF would manipulate associates to achieve his desired outcomes and probable that he would use violence.  Dr Owen noted that RAF’s vision impairment reduced the likelihood of direct offending by him but made it more likely that he would influence others to act illegally. 

   [22]Ibid.

   [23]Ibid.

1. Dr Owen considered that there was ‘some containment of risk over the period of the supervision order primarily due to apparent improvement in RAF’s cognitions’.  But the degree to which he could be taken at his word ‘should of course be treated with extreme caution’.[24]  In her opinion, the primary factor that contained RAF’s risk was the containment achieved under the supervision order.  Although RAF presented a moderate risk of sexual offending, Dr Owen recommended that there be no change to the order.[25]

   [24]Ibid.

   [25]Ibid [33].

1. Dr Owen reported that RAF had always been quite clear that the offending was related to ‘his beliefs about the acceptance of his religion’ and that the offending was ‘related to religious practices’.  Dr Owen noted that, despite assurances that he would not break the law, he still held exactly the same beliefs as he had held in 2006.  Dr Owen testified that RAF was still associated with the Church of Antioch.  (Although the judge invited the provision of material about the Church, none was forthcoming.)  His Honour then said:

Under cross-examination, it became clear that Dr Owen knew little about the Church of Antioch and about what RAF’s role was in the Church.  The high-water mark in her evidence with respect to the Church was, I think, her answer to the suggestion that RAF might use counselling through the Church as a vehicle for sexual predation:  ‘And I think in terms of future risk scenarios, given history that that’s not a scenario that’s beyond the realms of possibility’. - Dr Owen also said — I think without giving her evidence on this point much in the way of mature consideration — that Church members were ‘complicit’ in enabling RAF to send inappropriate letters.  Very importantly, Dr Owen agreed that she had reached the conclusion that RAF’s risk of future sexual offending was ‘moderate’;  that is, the identical finding made by Professor Ogloff.[26]

[26]Ibid [38].

1. Professor Ogloff first assessed RAF on behalf of the Department of Justice in 2006, when RAF was originally considered for the extended supervision order.  Thereafter, he assessed RAF in 2009 and 2014 on behalf of RAF’s solicitors.  Professor Ogloff provided a report dated 5 August 2016 and an addendum dated 13 December 2016.  His overall conclusion was that RAF presented a moderate risk of engaging in future sexual offending.  Significantly, Professor Ogloff explained that, taken in context, ‘this would represent the same level of risk as the majority of sex offenders who are released from custody’.[27]

   [27]Ibid [40].

1. Professor Ogloff referred to RAF’s various physical disabilities, including his visual impairment, which had grown considerably worse.  RAF continued to satisfy the criteria for a diagnosis of Narcissistic Personality Disorder.  He also presented traits of Antisocial Personality Disorder, but did not meet the criteria for such a disorder.

1. Professor Ogloff said that, although it was not possible to determine ‘with a high degree of accuracy’ an individual’s likelihood of reoffending sexually, reliable assessments could be made of the extent to which ‘an individual’s risk factors are equal to, significantly less than, or significantly greater than, other populations of sexual offenders’.  Professor Ogloff reported that RAF’s total score on the Static-99R test would be ‘0’.  Only four per cent of those who scored ‘0’ reoffended over the same period.[28]  According to Professor Ogloff, RAF’s total score on the unadjusted Static-99 fell into the ‘moderate to low’ category, and in the ‘low’ category on the Static-99R.  This was ‘lower than the average sexual offender, representing approximately 50 per cent of the re-offence rate as the average sexual offender’.

   [28]Ibid [48].

1. Professor Ogloff then referred to the fact that the Static-99R test was limited in scope to past risk factors, and did not take into account changes to risk that might occur over time, save for age.  Professor Ogloff therefore administered the RSVP, which is ‘an additional, more comprehensive, evaluation of RAF’s level of risk for sexual offending’.  He found that RAF ‘appears to present a moderate risk of reoffending sexually based on the presence and pattern of RSVP factors.’[29]

   [29]Ibid [52].

1. The trial judge then referred to the second report of Professor Ogloff, in which he assessed RAF’s risk for non-sexual violence and violent offending using the HCR-20 assessment tool.  Professor Ogloff concluded that RAF’s level of current risk factors for non-sexual violence was low and has remained low for almost two decades.

1. Priest JA then set out Professor Ogloff’s summary of his conclusions as follows:

The static variables present in [RAF’s] case, as assessed by the Static-99R score fell into the Low category.  A comprehensive evaluation of the risk factors associated with sex offending using the RSVP indicates that [RAF] presents a Moderate risk of future sexual offending.  Factored into this level of risk is [RAF’s] advancing age, which has led to a reduction in his risk level from that when he was offending in his 30s.

Taken together, it is my opinion that [RAF] presents a moderate risk of engaging in future sexual offending.  Taken into context, this would represent the same level of risk as the majority of sex offenders who are released from custody.

…

[RAF] presents with a growing degree of despair about his prospects for ever living free in the community.  I believe the deterrent effect of his sentence and now supervision orders have been strong and if he was to be released to live in the community, he would be strongly deterred from reoffending.  Indeed, he has been incarcerate [sic.] or under supervision for two decades.

...

It is my opinion that [RAF] presents a moderate risk of committing a sexual offence in the future.  The level of supervision under which he has been subjected has managed his level of risk for reoffending sexually;  however, it will only be possible to determine with certainty whether he can independently control his risk level if he was to now move to a lower level of restriction.

As detailed in this report, [RAF’s] sexual offence history, while involving serious offences, was limited to victimising two 15-year-old girls whom he was counselling.  The offending was very serious as set out in the judge’s sentencing comments.  He has attempted to explain that his offending occurred in the context of his religious beliefs.  This is incredible given the nature and extent of the victimisation which extends well beyond what could be explained as being part of any religious ritual.  While he still holds those views, he recognises the illegality of his behaviour and, in my view, poses a moderate risk of reoffending in a similar manner in the future.

Although it is my opinion that he poses a moderate risk of sexual offending at the present time, if he does return to offending, it would most likely be in a context where he violated a position of trust over a sexually mature but adolescent girl.  I believe, however, that he has the intellect and skills to desist from engaging in reoffending in the future.[30]

[30]Ibid [55]–[56] (emphases added).

The reasons of the trial judge

1. At the commencement of the hearing, the trial judge warned senior counsel for the Secretary that he would need to confront the opinion of Professor Ogloff that RAF presented no greater risk than the average sex offender released into the community.  His Honour noted what had been said by the Court of Appeal in Nigro, about moderate risk and unacceptable risk and the way in which those concepts might impinge upon one another, and indicated that the Secretary would have a formidable task in persuading him that the supervision order ought to be renewed.

1. In his reasons, the judge noted the ‘common opinion’ of the experts that RAF presented a moderate risk of reoffending, and that this was the same risk of sexual reoffending as was presented by the average sex offender released into the community.  Referring to the Static-99R scores, his Honour held that, statistically, RAF represented a risk of sexual reoffending over five years ‘in a range somewhere between 7.1 per cent at the higher end, or 2.8 per cent at the lower end.’[31]  

   [31]Ibid [62].

1. In Nigro, the Court said:[32]

   [32]Nigro (2013) 41 VR 393 [125].

However, the Secretary rightly contended that it did not follow that where the assessment was that the level of risk was moderate and equated to the average sex offender risk, the circumstances could not in a particular case amount to an unacceptable risk.  The degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, and any other matter the court considers relevant, will determine whether the risk is unacceptable.

And the Court further observed:[33]

It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’.  That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.

[33]Ibid 394 [130]; see also 404 [167].

1. After setting out these passages, his Honour addressed the first of the two matters here identified, namely, the likelihood of RAF reoffending sexually:

At the risk of repetition, the evidence suggests that RAF presents no greater risk of reoffending sexually than the average sex offender released into the community.  Hence, in my view, the ‘degree of likelihood of the occurrence of the risk’ of RAF committing a ‘relevant offence’ is low.[34]  Indeed, I regard it as far more probable than not that RAF will not commit a relevant offence if released into the community unsupervised.  Quite apart from the opinions of Dr Owen and Professor Ogloff, that conclusion is supported by a variety of other factors, including RAF’s age, physical infirmity and lack of eyesight.  Further, although his offending two decades ago was abhorrent, it needs to be remembered that RAF has been convicted of relevant offending only once in his life, in peculiar circumstances which are unlikely to be replicated.  Moreover, RAF is intelligent and, notwithstanding that he may still hold aberrant beliefs, he has the cognitive capacity to desist from future offending.  There is little doubt, in my view, that ten years’ imprisonment, together with a further decade of supervision in conditions severely curtailing his freedom, has had a strongly deterrent effect upon him.[35]

[34]Ibid 393 [125].

[35]Reasons [67] (emphasis added).

1. His Honour then addressed the second issue, namely, the seriousness of the consequences if the risk eventuated:

Based on the experience of the Courts, however, it might readily be concluded that any future offending by RAF would, as Professor Ogloff put it, likely have ‘a long term debilitating influence’ on any future victim.  That likelihood being acknowledged, in my view it is impossible to determine with any greater precision what the severity of that debilitating influence might be, since such severity would be determined by individual factors — including the personality, character and temperament of any victim — which are impossible to predict.  Thus, in my opinion, the evidence does not justify the conclusion that the possible consequences of any future relevant offending by RAF will be any greater than is generally encountered by adolescent female victims of aberrant sexual activity perpetrated by an adult male.  Of course, that observation is not calculated to minimise the effect of such offending on victims, but is merely recognition of the fact that the evidence placed before me did not justify a different view.[36]

[36]Ibid [70]

1. The trial judge then discussed the need to balance against the putative risk the values accorded to liberty at common law and the values ascribed to the rights in pt 2 of the Charter of Human Rights and Responsibilities Act 2006.  His Honour said that, but for those countervailing values, ‘any risk of RAF sexually reoffending would be unacceptable.’[37]  After discussing the importance which the common law afforded to liberty and the right of personal security, his Honour said:

The scrutiny of a justification of the deprivation of liberty must not be perfunctory.  It is a real and solemn responsibility of the judiciary, rooted in our constitutional history.[38]

[37]Ibid [72].

[38]Ibid [76].

1. His Honour finally said:

As I earlier observed, despite being of the opinion that RAF represented only a moderate risk of committing another relevant offence if released into the community and not made subject to a supervision order, Dr Owen nonetheless opined that a mechanism ‘to provide ongoing supervision across a range of environments is necessary to assist in containment of [RAF’s] risk of reoffending and actively facilitate community re-integration’. I find it difficult to reconcile the opinion that RAF presents no greater risk than the average sex offender released into the community — the necessary concomitant of determining the risk to be ‘moderate’ — with the suggestion that a mechanism is necessary to provide ongoing supervision to assist in containing the risk of reoffending and to facilitate re-integration into the community. But in any event, as s 9(4) of the Act makes plain, the Court must be careful to ensure that in determining whether or not RAF poses an unacceptable risk for the purposes of s 9(1), it does ‘not consider the means of managing the risk or the likely impact of a supervision order on the offender’.

RAF’s crimes were repellent.  The circumstances of their commission are calculated to arouse strong emotion in the ordinary person.  Plainly the offences warranted stern punishment and strong condemnation.  The sole question for the Court is, however, whether the Secretary has established to a high degree of probability, by acceptable, cogent evidence, that RAF presently poses an unacceptable risk of committing a relevant offence if a supervision order is not made and he is in the community.  In circumstances where RAF poses no greater risk of reoffending than the average sex offender released into the community;  and where, as I have concluded, the possible consequences of any future relevant offending by RAF will be no greater than is generally experienced by adolescent female victims of aberrant sexual activity perpetrated by an adult male; I am unable to conclude that RAF poses an unacceptable risk within the meaning of s 9(1) of the Act. (emphasis added)

The consequence of those findings is that the Court cannot renew the supervision order under consideration.[39]

[39]Ibid [77]–[79].

Submissions

1. The Secretary initially submitted that, if the ground of appeal were made out, this Court would be required to remit the matter to the Trial Division for rehearing of the question of whether RAF was an unacceptable risk.  During oral argument however, it became apparent that that submission was predicated upon what was said in paragraph 35 of this Court’s decision in Nigro.[40] The Court was there concerned with an unusual circumstance: there had been no pre-existing supervision order and the Court had refused at first instance to make any supervision order. In that context, if a supervision order was to be made, it should be made upon a consideration of the entirety of the evidence on a rehearing. All of the subparagraphs of ss 101 of the Act, save for paragraph (a), are predicated on there having been an existing supervision order that has either been revoked, confirmed or varied. Upon these considerations being drawn to counsel’s attention, it was accepted that if the ground of appeal were made out, this Court should consider whether a supervision order should be made.

   [40]Nigro (2013) 41 VR 259, 369–70 [35].

1. As the Secretary acknowledged during oral submissions, it is now well established that sexual offending against children is profoundly harmful.  Without the need to differentiate between particular types of offending, the assumption can be made that the commission of sexual offences against children has a long-term debilitating effect on the victim.  The Secretary submits, however, that his Honour erred in concluding that the risk could not be unacceptable if it could not be said that the ‘possible consequences of any future relevant offending by RAF will be any greater than is generally encountered by adolescent female victims of aberrant sexual activity perpetrated by an adult male.’  According to the submission, it was error to conclude that a risk of harm no greater than that generally experienced by adolescent female victims of abhorrent sexual activity perpetrated by an adult male was not an unacceptable risk.  That sets the bar too high in establishing unacceptable risk and is contrary to the legislative intention directed to the protection of the community.

1. The Secretary submits that it was not necessary that a qualitative difference be established between the likely harm to a future victim who was subjected to the type of offending that RAF had previously engaged in, and the likely harm from more common illegal sexual activity with children.  He submits that the trial judge should have concluded that, as the harmful consequences of any sexual offending against a child were potentially catastrophic, it was unnecessary to differentiate the harm that would flow from RAF’s type of offending.

1. The Secretary further contends that, in any event, such a task would have been impossible.  It would be impossible, that is, for the Secretary to try to differentiate between the harm that was caused to victims in RAF’s offending and the harm caused to the myriad of other victims of sexual offending.  The consequence, it was said, would be that anyone who was at a moderate level of assessment of risk could never be made the subject of an order on the basis of unacceptable risk. 

1. In a further submission, not easily reconciled with the above, it was said by the Secretary that it would have been open to his Honour to have found that the likely harmful consequences to a victim of sadistic and degrading offending would have been greater than the harm from more common illegal sexual activity with children.  The Secretary acknowledges that the trial judge was never asked to undertake such a comparison.  No expert evidence was adduced in order to differentiate the potential harmful consequences of RAF’s type of offending or to consider where those harmful consequences sit in the spectrum of consequences from other types of sexual offending.  The Secretary submits that a moderate risk of offending combined with the profoundly harmful effects that it has upon children required a finding of unacceptable risk.   

1. The Secretary further submits that, although his Honour expressed his reliance on the principles set out in Nigro, his Honour did not undertake an evaluation of the particular circumstances which pertained to RAF but approached the matter in the way that had been cautioned against in Nigro, of making generalisations about the character and consequences of particular types of offences.  He submits that ‘his Honour failed to have regard to the centrality of considering the consequences of the conduct of this particular offender’ and that ‘the court should have regard, not to hypothetical potential victims, but to the circumstances pertaining to the offending and the effect of his conduct in the past’.[41]

   [41]Emphases in original.

Consideration

1. As noted earlier, a challenge on appeal to a finding that an offender does — or does not — represent an unacceptable risk of further offending will only succeed if the appellant can show that the finding was ‘plainly wrong or wholly erroneous’.  According to the Court in Nigro, this test flowed ‘from the nature of the statutory task’, which the Court described in these terms:

Furthermore, in our view the determination of the intermediate question of whether the offender poses an ‘unacceptable risk’ of committing a relevant offence in the absence of a supervision order is also so much a question of value judgment based on a matrix of fact and degree that this court should not interfere with the determination of the County Court unless it is plainly wrong.  The decision is one as to where the risk falls within a range of like risks.  It depends upon the opinion of a judge familiar with a range of risks within which the relevant risk occurs.  A qualitative assessment of this kind should not be easily disturbed.[42]

[42]Nigro (2013) 41 VR 259, 371 [41].

1. As the Court pointed out in argument, the phrase ‘plainly wrong’ is most commonly encountered in the jurisprudence governing comity between intermediate appellate courts.[43]  The phrase ‘wholly erroneous’ echoes some of the language used by this Court in relation to the ‘manifest excess’ ground in sentence appeals, that is, that something has to be shown to have gone ‘obviously’ or ‘badly’ wrong.[44]  As senior counsel for the Secretary accepted, the phrase ‘not reasonably open’ is a satisfactory substitute for both these phrases.[45]  This phrase correctly defines the limits on appellate intervention while avoiding the pejorative flavour of the other phrases.[46]

   [43]See, eg, DPP v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81, 106–7 [111]–[116].

   [44]See, eg, R v Stuttard [2006] VSCA 112 [26]; R v Abbott (2007) 170 A Crim R 306, 309 [14]; Camblin v The Queen [2013] VSCA 1 [19].

   [45]See, eg, Clarkson v The Queen (2011) 32 VR 361, 384 [89].

   [46]See R v XY (2013) 84 NSWLR 363, 373 [34].

1. Priest JA comprehensively reviewed the evidence before him that suggested that RAF was a moderate risk of reoffending.  The implications of such a finding were considered in the joint reasons in Nigro. It had there been submitted that an offender who was assessed to be a moderate risk — that is, no more than the average offender who has committed a sexual offence — could not be an unacceptable risk because that would mean the legislation would no longer operate in exceptional cases but would rather become the norm.[47]  That argument was rejected.  As to the risk posed by the average sexual offender, the Court stated:

the test is plainly intended to operate by reference to risk to the community and not by reference to standards of risk fixed by relative rates of recidivism. The Act makes no implicit assumption as to risk occasioned by ‘average’ offenders. Evidence as to that risk informs the task but does not determine the application of the relevant criterion.[48]

[47]Nigro (2013) 41 VR 259, 390 [115].

[48]Ibid 390 [116].

1. The joint reasons in Nigro state that it is necessary to consider ‘the type of sexual offence that the person may commit, the likelihood of that occurring, and the nature and gravity of harm that it may cause’[49] and that ‘there is no threshold requirement of “exceptional circumstances”.’[50]  Thus a risk could still be considered unacceptable where the level of risk was moderate and equated to the risk of an average sex offender.  The unacceptable nature of the risk will depend on:

The degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, and any other matter the court considers relevant.[51]

[49]Ibid 404 [165].

[50]Ibid 404 [166].

[51]Ibid 393 [125] (emphases added).

1. The joint reasons in Nigro recognised the ‘inherent difficulties in seeking to categorise sexual offences in terms of their gravity’ and warned against placing the offence within a continuum of offences ranging in severity.[52]  The Court said:

It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable.’  That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[53]

[52]Ibid 394 [129].

[53]Ibid 394 [130].

1. As noted earlier, the Secretary’s attack concentrated on the judge’s statement, set out above, that

the evidence does not justify the conclusion that the possible consequences of any future relevant offending by RAF will be any greater than is generally encountered by adolescent female victims of aberrant sexual activity perpetrated by an adult male.[54]

[54]Reasons [70].

1. As we have said, senior counsel for the Secretary accepted that there was no evidence before the judge to suggest that harm likely to be suffered by any future victim of offending by RAF would be any more serious than that suffered by any adolescent female who was the victim of sexual offending by an adult male.  Indeed, counsel submitted, it would be ‘quite an impossible task’ for the Secretary to try to differentiate between the harm suffered as a result of offences of the kind committed by RAF and the harm suffered by other adolescent victims of sexual offences.

1. It is to be remembered that the Act requires that by ‘acceptable, cogent evidence’ and ‘to a high degree of probability’ — the burden resting on the Secretary — that the evidence be of sufficient weight to justify a decision of unacceptable risk. Thus the Secretary accepted that the trial judge could not have been expected to differentiate between the consequential harm experienced by potential victims of RAF’s type of offending and the harm suffered by victims of other types of illegal sexual activity.  The trial judge was not requested to do so.

1. The focus of the Secretary’s complaint was quite different.  It was that, given the grave harm associated with any sex offending against adolescent females, the judge in the present case should have concluded that RAF presented an ‘unacceptable risk’.  As noted earlier, the ‘joint opinion’ of the experts was that RAF was a ‘moderate’ risk of reoffending.  The judge’s own assessment, which the Secretary did not challenge, was that it was ‘far more probable than not’ that RAF would not reoffend.  Proceeding from the experts’ assessment, however, the Secretary’s contention was that where (as here) there is the combination of:

·a moderate risk of the commission of sexual offences;  and

·the catastrophic harm invariably associated with such offending,

the Court must come to the conclusion that the risk is unacceptable for the purposes of the Act.

1. As was pointed out by members of the Court during argument, this contention if accepted would have surprising consequences.  Crucially, as the judge noted, there is a ‘moderate’ risk of reoffending associated with the typical sex offender on his/her release from custody.  Senior counsel for the Secretary accepted that this was so.  Secondly, as the Secretary accepts — indeed asserts — the gravity of the harm to be anticipated should RAF reoffend is the same as that which would be anticipated if any other child sex offender reoffended.

1. As can be seen, the effect of the Secretary’s position is that every child sex offender who, at the point of release from prison, presented at least a moderate risk of reoffending would be liable to be judged an unacceptable risk.  The combination of a moderate risk of reoffending, and the grave harm which would result if that occurred, would seem to entail that result.

1. While a supervision order may be justified in such circumstances, the breadth of the Secretary’s position goes well beyond what Parliament provided for when it established this regime of preventive detention.  The criminal justice system imposes punishment on sex offenders and, in the ordinary course, an offender who has served his/her sentence is entitled to be released.  The legislature recognised, however, that there were some individuals to whom the ordinary rules should not apply — hence the notion of ‘unacceptable risk’.

1. It is to be recognised, as Nigro states, that the statutory regime contemplates that some level of risk may remain acceptable even for offenders who have been imprisoned for the most serious of sexual offending.[55]  Where an offender poses only a moderate risk of reoffending (the risk of the average sexual offender) and the evidence does not enable the conclusion that release of that offender into the community may result in more serious harm to adolescent females than would be caused by other illegal sexual activity with such victims, the circumstances do not necessarily require the conclusion that the offender is an unacceptable risk.

   [55]Nigro (2013) 41 VR 259, 378–9 [69], 390 [113].

1. In the present case, the judge gave very great weight to the experts’ assessment of risk but, quite properly, did not regard their opinions as relieving him of the obligation to reach his own conclusion about risk.  And, as we have pointed out, he came to the view that it was ‘far more probable than not’ that RAF would not commit a relevant offence if released into the community unsupervised.  His Honour listed a range of other factors which, he said, supported that conclusion ‘quite apart from the [expert] opinions’.  The Secretary did not challenge that risk assessment.  That is unsurprising, given the care with which his Honour examined all of the evidence and the thoroughness with which he analysed the key aspects both of the expert evidence and of RAF’s current condition.

1. His Honour’s finding regarding the risk of reoffending was critical to his ultimate conclusion.  As senior counsel for the Secretary accepted in argument, his Honour was in effect saying that it was ‘highly improbable that RAF would offend again’.  Of course, predictive exercises of this kind are at best uncertain but this was a very powerful finding.  It would be strange indeed if, absent some other consideration, a person assessed at such low risk were nevertheless to continue to be held in detention.

1. As the judge was careful to point out, his conclusion about the likely impact on a future victim was not intended in any way to diminish the seriousness of that impact.  As the Court discussed with senior counsel for the Secretary, any sexual offending against children is assumed to be profoundly harmful.  All too often this Court sees victim impact statements which demonstrate just how catastrophic this kind of offending can be for the victim(s).  As we have made clear, however, the issue was whether there was anything about RAF’s offending which should alter the ‘degree of harm’ analysis so as to bear relevantly on the assessment of ‘unacceptable risk’.

Conclusion

1. The foregoing analysis makes clear that it was well open to his Honour to conclude that RAF did not represent an ‘unacceptable risk’.  The appeal must therefore be dismissed.

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