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Restrictive post-sentence orders for sex offenders

Feature Articles

Cite as: Jan/Feb 2011 85(1/2) LIJ, p.50

A thorough understanding of the Serious Sex Offenders (Detention and Supervision) Act 2009 is essential when defending applications for orders to control offenders’ movements and activities after sentence completion.

By Shaun Ginsbourg

The Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) (the new Act) commenced on 1 January 2010 and succeeded the Serious Sex Offenders Monitoring Act 2005 (the old Act), which was Victoria’s first regime of preventive orders specifically targeted at sexual offending.

The new Act introduces another type of restrictive order – detention orders – in addition to the orders applicable under the old Act. Detention orders permit post- sentence imprisonment for up to three years (s42(1)),1 and may only be made by the Supreme Court on application by the Director of Public Prosecutions. Supervision orders, retained from the old Act, impose restrictive conditions on an offender in the community for up to 15 years. These orders may be made by either the Supreme or County Court,2 on application by the Secretary to the Department of Justice.3

Interim orders are available to bridge any delay between the respondent’s release from custody after sentence completion or release on parole and the hearing of an application for final orders.

The new Act effectively transfers to the courts the power to determine the discretionary supervision order conditions, previously conferred on the Adult Parole Board by the old Act.

The potentially severe impact of orders, and the increased role of courts in determining conditions, make it more important than ever that practitioners vigorously defend the interests of clients faced with an application.

Key provisions

Purposes

Section 1(1) commences: “The main purpose of this Act is to enhance the protection of the community”. The secondary purpose is “to facilitate the treatment and rehabilitation of . . . offenders” (s1(2)).

The hierarchy of purposes is critical to understanding the Act’s operation. Orders, if made, will often jeopardise an offender’s rehabilitation by continued detention, or restricted contact with the community or employment. Section 1 requires that conflict to be resolved in favour of community protection wherever it arises under the Act.

Likewise, community protection outweighs any consideration of adverse impact on an offender. Adverse impact must be ignored by a court in deciding whether an offender poses an unacceptable risk of re-offending (ss35(3), 9(4)). Under s15(6), when considering what discretionary conditions to impose on a supervision order, the court must ensure community protection before it is obliged to minimise the interference the conditions impose on the offender.

Because the Act makes community protection paramount, it conceivably permits a more severe interference with liberty to control the risk of a relevant offence occurring than would be imposed in sentencing an offender for actually committing it.

Eligibility

The principal class of persons eligible for orders are adults serving a custodial sentence imposed at least in part for a “relevant offence” (s4). The Act adopts a specific definition of custodial sentence that excludes, for example, a suspended sentence and an intensive corrections order (s3). Schedule 1 lists relevant offences and includes virtually all sexual offences.4

Assessment

Any application for an order against an eligible person must be preceded by an assessment process under Part 8 of the Act. This process requires a medical expert – typically a psychologist or psychiatrist – to attempt a personal examination and report to the Secretary (ss106–7). The Secretary may then apply for a supervision order, or refer the matter to the Director (s104) to consider whether to seek a detention order (s105).

Unacceptable risk

No order can be made under the Act unless a court finds the respondent poses an “unacceptable risk” of committing a relevant offence (ss35(1), 9(1)). This question does not require a court to find that an offender is more likely than not to commit a relevant offence,5 although it plainly requires more than a minimal risk.6 Some level of risk is acceptable given that, even without an order, a degree of community protection is provided both by conventional law enforcement7 and by controls on sex offenders imposed by the Sex Offenders Registration Act 2004 (Vic) and the anti-loiter provisions in s60B of the Crimes Act 1958 (Vic).

The seriousness of the offending at risk of occurring is also relevant. In A-G (Qld) v Beattie,8 Keane JA said in respect of similar legislation that “whether or not a . . . risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising”. Thus where the type of offending at risk is low level, the degree of acceptable risk is higher.

The burden of proving unacceptable risk falls on the applicant (ss35(5), 9(6)). The burden may only be discharged by “acceptable, cogent evidence” that satisfies the court “to a high degree of probability that the evidence is of sufficient weight to justify the decision” (ss9(2), 37).

The court has a residual discretion not to make an order even where unacceptable risk has been demonstrated,9 although it is difficult to imagine a case where this discretion has work to do.

Detention orders

Before making a detention order, the Supreme Court must find that the risk of offending would be unacceptable unless a detention order were made (s36(1)). In other words, the risk must be so grave as to remain unacceptable in the face of any controls that might be imposed on the offender in the community by way of a supervision order.

Detention orders may be a new feature of the Act, but do they substantially change the regime contained in the old Act? Offenders subject to “extended supervision orders” (as they were then called) under the old Act could be required to live on premises within the perimeter and walls of a prison, although not forming part of it (s16(3A)). Offenders confined to prisons under detention orders made pursuant to the new Act will, according to the Attorney-General, “where possible . . . [be] housed in separate accommodation from prisoners serving a sentence”.10 The only real change therefore, is that the Attorney-General’s stated aim of continuing to separate preventive detainees from prisoners is no longer a statutory obligation.

Supervision orders

Section 16 sets out core conditions to which all supervision orders must be subject. These include: not committing a relevant offence; attending any place directed by the Adult Parole Board for the purpose of administration of, or assessment under, the order; reporting to and receiving visits from the Secretary or nominee; notifying the Board of any change of or new employment; and not leaving Victoria without the Board’s permission (s16(2)).

Section 17 sets out “suggested” conditions that the court must consider, but is not obliged to impose. These are: where the offender may reside; curfew; places where the offender must not go; treatment or rehabilitation requirements; restrictions on the consumption of drugs and alcohol and testing for the same; prohibited types of employment, behaviour and community activities; persons or classes of persons with whom the offender must not have contact (for example, children); forms of monitoring, including electronic monitoring; and attendance for medical conditions (s17(1)).

The discretion to fix many of the suggested conditions in s17 was previously conferred on the Board under the old Act.11 The effective transfer of this power to the courts by the new Act makes the process of formulating conditions more transparent and accountable. This is to be welcomed.

An offender may be required to live in a “residential facility” (s18), defined by s133 to mean any premises other than a prison or police jail appointed by the Governor in Council for that purpose. As of June 2010, the only place appointed under the Act is a 40-bed facility known as “Corella Place”. In conformity with the letter, but perhaps not the spirit, of s133, the appointment of Corella Place under the Act has been achieved by changing a portion of the land appointed as Ararat Prison under s10 of the Corrections Act 1986 to land appointed under s133. The appointed facility now abuts the perimeter fence of the jail and is surrounded on all but the eastern boundary by land still appointed as Ararat Prison.12

Life in a residential facility is likely to be highly regimented and restricted. Section 16(2)(g) makes it a core condition of any supervision order requiring residence at a facility that the resident “obey all reasonable instructions given by a supervision officer that are necessary to ensure the good order of the facility”. Residents are typically prohibited either by condition or direction from leaving the facility except under escort,13 and access to media and the internet may be restricted. And, like Corella Place, any venue deemed politically acceptable for a residential facility is likely to be in a remote location well removed from the community.

In order to avoid imposition of a residential facility condition, practitioners should advise their clients to find alternative accommodation that is considered suitable by the Secretary – or in any event, that is likely to be considered suitable by the court. Both the Secretary and the court will scrutinise very carefully the environment in which a respondent proposes to reside, including who else lives there or nearby, and whether the proposed residence is near to places such as schools or parks that increase the risk of offending.

Beyond the suggested conditions in s17, a court may impose any other conditions it considers appropriate to reduce the risk of offending – including by promoting rehabilitation or treatment – or to provide for the reasonable concerns of the victims of previous offences (s19).

All discretionary conditions must meet the requirements in s15(6): namely, that they minimise interference with liberty, privacy and freedom to the extent necessary to ensure the purposes of the conditions, and that the conditions are reasonably related to the gravity of the risk of re-offending.

Breach of a supervision order can result in prosecution for an indictable offence punishable by up to five years imprisonment (s160), or an application being made to vary, review or upgrade the order to detention (s163).

Interim orders

A court may not make an interim order unless satisfied that “the documents supporting the application for the [final] order would, if proved, justify the making of [the final] order”,14 and, further, that it is in the public interest to do so.15

The interim order provisions must be read with s113. This section provides that once a party files a written notice of intention to dispute a document, a court cannot take the document into account until the filing party has had the opportunity to cross-examine the author.

The entitlement to cross-examine is one reason why practitioners should not be readily discouraged from contesting an application for an interim order. Early cross-examination provides an opportunity to identify weaknesses in the applicant’s case and issues that can later be addressed by expert witnesses engaged by the respondent.

Reviews

Providing the offender is not serving a custodial sentence at the time (s65), mandatory periodic reviews of orders take place annually in the case of detention orders (s67), and three-yearly in the case of supervision orders (s66), or more frequently if specified in the original order. The Act permits additional reviews on application of the parties, subject to leave of the court (s68).

On review, the order must be revoked unless the original applicant can satisfy the court that the respondent continues to pose an unacceptable risk (ss73–74).

A court’s powers on review enable it to substitute a different order (ss73(3)-(4), 74(3)) or, in the case of a supervision order, to vary the conditions (s73(9).

Renewal

The Act permits applications to be made for renewal of both supervision and detention orders while they are still in force.16 There appears to be no limit to the number of successive renewals available, nor is there a requirement that the respondent have committed further offences since the order was made.

Appeals

Part 7 entitles any party to an application or order to appeal to the Court of Appeal against a broad range of decisions at both interim and final stage. Appeals may be filed without leave within 28 days of the decision (s99(1)-(2)).

Preparation for hearing

Practitioners should:

  • ensure they have access prior to the interim and final hearing to all relevant documents available to the applicant;
  • prepare affidavits that put before the court factual material about the client’s personal circumstances, such as employment prospects or available accommodation;
  • commission a suitably qualified expert to examine their client, review the available material, and prepare an assessment report for the final hearing;
  • consider whether notices are required under s113 (to dispute expert reports) or under the Charter of Human Rights and Responsibilities Act 2006 (Vic); and
  • check that statistical and clinical tools used in the applicant’s assessment report have been correctly applied and validated for the purpose for which they are utilised.

Conclusion

The potentially severe impact that orders under the Serious Sex Offenders (Detention and Supervision) Act 2009 can have is reflected in the requirements that applications be heard by superior courts, based on cogent evidence, and proved to a high standard. Even so, to ensure the legislation does not unfairly abrogate human rights, it is essential that defence lawyers understand its operation, and use every means reasonably available to defend applications made against their clients.



SHAUN GINSBOURG is a Victorian barrister, with a particular focus on criminal trials and appeals, including complex fraud and drug matters as well as sexual offences. The author thanks Paul Holdenson QC and Brad Newton of the Victorian Bar for their comments on earlier drafts of this article.

1. Section numbers refer to the new Act unless otherwise specified.

2. The Supreme Court must hear the application if it sentenced the offender for the index offences.

3. However, a supervision order can be imposed by the Supreme Court on an application for a detention order: ss36(4) and (6).

4. The only significant omission noted by the writer is obscene exposure under s19 of the Summary Offences Act 1966 (Vic).

5. Sections 35(4) and 9(5), previously inserted in the old Act in response to the decision of the Court of Appeal in RJE v Secretary to the Department of Justice (2008) 21 VR 526.

6. See, in a similar context, R v Chan [2006] VSCA 125.

7. Maxwell P appeared to approve this approach to unacceptable risk in the context of the Bail Act 1977 (Vic) in Re Asmar [2005] VSA 487, at [26].

8. [2007] QCA 96, at [19].

9. Sections 9(7), 36(3) and (5).

10. Hansard, Legislative Assembly, 12 November 2009, p4036.

11. Serious Sex Offenders Monitoring Act 2005, s16(3).

12. See the orders dated 10 June 2009 (Gazette G24, 11 June 2009 at 1499), 22 December 2009 (Gazette G52, 24 December 2009 at 3472), and 16 March 2010 (Gazette G11, 18 March 2010 at 567 and 568).

13. It is questionable whether this direction falls within that which an offender is obliged to obey under s16(2)(d).

14. Sections 53(b) and 54(1)(b).

15. Sections 53(1)(c) and 54(1)(c). This appears intended to entitle a court to refuse interim orders if listing delays are unreasonable.

16. Div 5 of Pt 2 and Div 4 of Pt 3.

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