Department of Public Prosecutions Seeks Detention Order Against Serious Sex Offender
DPP v CS [2021] VSC 686 (26 October 2021)
The respondent was previously made subject to a supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). The applicant seeks a detention order with respect to the respondent for a period of three years on the basis of the unacceptable risk of committing a serious sex offence. The Court, in deciding whether or not to make the sought order, took into consideration, the previous supervision order, the history of violent offending, and the respondent's criminal history.
Facts:
On 7 January 2021, the Director of Public Prosecutions (‘the applicant’ or ‘the DPP’) applied for a detention order for a period of three years in respect of CS (‘the respondent’). In 2013, the respondent was made subject to a supervision order under the now repealed Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) (‘the superseded Act’). At the time the application was heard the respondent was on remand in the Marlborough Unit at Port Phillip Prison. The application was made on the grounds that the respondent poses an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and he is in the community, and that that risk would be unacceptable unless a detention order were made.
The two offences in respect of which the respondent has been convicted and which are covered by the Act are serious sexual offences — specifically, convictions for assault with an intent to rape in 2005, in relation to offending which occurred in 2004, and attempted rape in 2009, in relation to offending which occurred in 2006.
Issue:
Whether or not a detention order should be made with respect to the respondent.
Applicable law:
Serious Offenders Act 2018 (Vic) ss 1, 3, 8, 21, 32 - provides that the Court may impose an intensive treatment and supervision condition requiring an offender to reside at a residential treatment facility.
Serious Offenders Act 2018 (Vic) s 63 - provides that the Court must consider whether the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and the offender is in the community.
Serious Offenders Act 2018 (Vic) s 64 - the Court must consider whether the risk of the offender committing, or after release from custody committing, a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made, in accordance with this provision.
Serious Offenders Act 2018 (Vic) s 255 - provides that a person subject to a detention order must be treated in a way that is appropriate for his or her status as an unconvicted prisoner.
Nigro v Secretary to the Department of Justice[2013] VSCA 213; (2013) 41 VR 359 - held that to make a detention order, the Court must be satisfied ‘to a high degree of probability’ (being a standard approaching the criminal standard) that:
(a) the respondent poses or, after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention or supervision order is not made; and
(b) the respondent poses or, after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both unless a detention order were made.
DPP v CS (No 1) [2021] VSC 534R - where an application under s 75 of the Act for an interim detention order (‘IDO’) in respect of the respondent was heard as it had become clear that the respondent’s release from remand was likely to be imminent.
Secretary to the Department of Justice and Community Safety v SM (No 2) [2019] VSC 707, [26] - provided that the test of unacceptable risk should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection.
Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 622–4 [123]–[126] - 'likelihood’ in this context is concerned with the prediction of future events, which courts have acknowledged to be notoriously difficult.
Briginshaw v Briginshaw (1938) 60 CLR 336 - provides that there must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable.
DPP (Vic) v MAJ [2011] VSC 646R - considered that the applicant necessarily bears the onus of satisfying the requirements of s 64.
Attorney-General for the State of Queensland v Robinson [2017] QSC 332, [62] - where if the respondent’s contrariness causes one to contravene conditions of his supervision order, and that leads to both proceedings against him for an offence contravening the order and tighter surveillance and more trouble for QCS [Queensland Corrective Services] officers, those are prices to be paid for being subject to and costs of administering the DPSOA [Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)] system but, in this Court's view, that does not necessarily reflect an increased risk of the respondent committing a serious sexual offence
Attorney-General for the State of Queensland v Francis [2012] QSC 275, [64] - provided that where contravention of a supervision order is proved, the Dangerous Prisoners (Sexual Offenders) Act 2003 does not require continuing detention unless the prisoner can show that the supervision order would in future be complied with.
Analysis:
The respondent’s access to potential victims, weapons, and alcohol in the community, and the relative difficulty of containing his violence in a timely manner in a community setting, mean that his risk of committing a serious sex offence or a serious violence offence or both would be unacceptable if he were unsupervised in the community. The respondent’s access to potential victims and disinhibiting substances can be adequately restricted under a supervision order. It is difficult to accurately evaluate the gravity of the consequences of the respondent committing a serious violence offence in circumstances where the respondent has never before been convicted of a serious violence offence, and the characteristics of his serious violent offending are as a consequence, uncertain. The experts’ description of the respondent’s violence as ‘impulsive’ and ‘reckless’ may be contrasted with cases where the subject offending is, for example, highly premeditated and deliberate, and the consequences of that offending capable of more precise prediction.
Conclusion:
The Court is not satisfied to a high degree of probability that the risk of the respondent committing a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made. The Court concluded that the respondent is an unacceptable risk under s 63 and that the protection of the community requires that he be placed on a supervision order.
