IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
 Not Restricted
Suitable for Publication	
Case No. CR-23-01193

THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY 	Applicant	
		
v		
		
J E C	Respondent	

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JUDGE:	HIS HONOUR JUDGE PILLAY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	2 October & 9 October 2023 and submissions filed 13 October 2023	
DATE OF RULING:	13 October 2023	
CASE MAY BE CITED AS:	The Secretary to the Department of Justice and Community Safety v J E C	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1837		

RULING
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Subject:	SUPERVISION ORDER
Catchwords: 	Application for interim supervision order – whether condition is a restrictive condition – broad access to internet – non-publication order
Legislation Cited:	Serious Offenders Act 2018 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:	
Ruling:	Application granted

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Ms S Maharaj KC
Mr R Kornhauser	Solicitor to the Dept of Justice and Community Safety	
			
For the Respondent	Mr D De Witt 	Victoria Legal Aid	

HIS HONOUR:

1	This is an application for an Interim Supervision Order (“ISO”).  The majority of the terms of that ISO are not in dispute.  The respondent himself concedes an ISO is appropriate.
2	I have had the opportunity to read the detailed assessment reports prepared by Dr Joel Godfredson, dated 1 June 2023, Note of Conference dated 7 October 2023 and Letter of Advice dated 12 October 2023. In addition, I have had regard to the material filed with the application being the applicant and respondent’s outlines of submission and particularly I have taken account of the respondent’s past criminal history. I am satisfied having considered that material, that the respondent poses an unacceptable risk of committing a relevant offence if a supervision order is not in effect and he is in the community. I am satisfied that the core conditions and additional conditions are necessary to address the risk of further offending. I will return to this issue after considering the conditions the parties are in dispute about.
3	Only four specific matters remain in contention regarding the terms of the ISO.  Those four matters are set out in a draft ISO helpfully provided to the court by the applicant and dated 2 October 2023.  Using that draft order as a guide, the following draft orders are in dispute:
Order 5.11 – As to proposed Draft Order 5.11, the respondent seeks a variation to allow him the ability to speak by phone and to text a Mr Jukes;
Order 5.13 – As to proposed Draft Order 5.13, the applicant seeks to have this declared a restrictive condition.  Proposed Draft Order 5.13 broadly prohibits J E C from knowingly having any contact with male children under the age of 16 years;
Order 5.15 – As to proposed Draft Order 5.15, the respondent seeks to have broader access to the internet than the proposed five permitted uses listed by the applicant;
Section 279 – The respondent seeks the addition of a Non-publication Order pursuant to s 279 of the Serious Offenders Act 2018 (“the Act”).
4	Before dealing with these specific areas of dispute, something must be said of the circumstances of the respondent.  The respondent is currently serving a term of imprisonment for sexual offending imposed by the County Court on 14 September 2018.  That term is due to expire on 16 October 2023.  Some time ago, the applicant applied for a Supervision Order and filed material in support of that application, relevantly including a report from a forensic psychologist, Dr Godfredson dated 1 June 2023.  That matter was listed for hearing on 2 October 2023.  About two weeks prior to that hearing, the respondent advised that he would seek to challenge specific proposed terms of the Supervision Order and required time to prepare material.  The applicant then indicated that it would seek an ISO on 2 October 2023 to permit the respondent time to obtain material.  The matter then proceeded on 2 October 2023 as an ISO application.  
5	The applicant called Dr Godfredson and he was cross-examined.  It became apparent during this evidence that since the provision of his initial report, he had had conference with the applicant’s legal advisers.  I considered it appropriate that a note of conference be provided.  
6	At the end of Dr Godfredson’s evidence, senior counsel for the applicant sought to close the court to address on matters that went to the applicant’s knowledge of Mr Jukes and why it opposed the respondent’s submission that he be permitted to have telephone and text communication with Mr Jukes.  I permitted the court to be closed for that limited purpose.  At the conclusion of those submissions, the matter was adjourned for one week to 9 October 2023.  In that time, the applicant was to:
(i)	provide notes of conference that they had conducted with Dr Godfredson;
(ii)	obtain any further information it wished to place before the court as to Mr Jukes;
(iii)	obtain any further information it wished to place before the court as to the respondent’s access to the internet.
And the respondent was to:
provide a draft order setting out its proposed variations in respect of – 
Order 5.11 – contact with Mr Jukes;
Order 5.15 – the detail of the internet access he sought.
7	The matter returned to court on 9 October 2023.  
8	At that time, the applicant tendered:
9	(a) exhibit A2 – Notes of Conferences held with Dr Godfredson which occurred on 26 September 2023 and on 2 October 2023. The Note of Conference itself was dated 7 October 2023 and was not signed by Dr Godfredson but was endorsed by the applicant’s lawyers, Minter Ellison;
(b) exhibit A3 – an email clarifying Dr Godfredson’s opinion as expressed in the Notes of Conference dated 7 October 2023;
(c) exhibit A4 – an outline of evidence of Ms Cheyenne Autumn Katherine Newman, a representative of the Post Sentence Branch (“PSB”).
The respondent filed a proposed draft ISO with proposed wording for conditions 5.11 and 5.15 of the proposed ISO.
10	Ms Newman was then called to give evidence.  She is the assistant manager at PSB having assumed that role on 22 February 2023.  She gave evidence that she had been in contact with Mr Jukes and that he was open in his discussion with her. She confirmed that Mr Jukes was born in 1990 and was currently about 33 years of age. He indicated that he would allow J E C to contact him and that he was not concerned by such contact either by phone or letter.  She confirmed her understanding from the reading of file notes that he had a mild intellectual disability, but under cross-examination she could not confirm the nature of that intellectual disability or in what areas he had deficits.  She confirmed that from her reading of the prison files, there was concern generated about J E C contacting Mr Jukes due to a request by J E C for Mr Jukes’ bank account so that he could deposit $50,000 and also an intercept of a telephone call in which J E C offered several hundred dollars to Mr Jukes. That phone call occurred in August 2023.  Ms Newman also gave evidence that the PSB often engaged in an assessment of people with whom offenders seek contact.  Sometimes this involved assessment by forensic intervention services or an appropriately qualified psychologist.
11	At the conclusion of her evidence, the applicant indicated that they wished to have Dr Godfredson conduct an interview with Mr Jukes and provide a supplementary report as to whether contact with Mr Jukes was appropriate.  As a result of that application, the matter was further adjourned with orders that any further report of Dr Godfredson regarding an interview with Mr Jukes be provided to the court by midday on 12 October and any submissions relating to it be provided on 13 October.  This was to allow a ruling to be made by 2.15pm that day prior to J E C’s release on Monday, 16 October.
12	A further “Letter of Advice” dated 12 October 2023 prepared by Dr Godfredson was filed. In it he detailed an interview he conducted with Mr Jukes by phone on 11 October 2023. He also provided further opinion as to his recommendation as to contact between J E C and Mr Jukes.
13	Dealing with each matter in contention between the parties in turn then.
Proposed Draft Order 5.11 – regarding contact with Mr Jukes
14	It can be accepted that Mr Jukes had a prior criminal history of sexual offending.  He was released in 2020.  Dr Godfredson was told by Mr Jukes that he is not currently on parole or subject to a Supervision Order.  He has had regular phone contact with the respondent during the last three years.  He has, however, been denied physical visits at the prison due to concerns that he was being exploited.
15	The respondent submits he ought be permitted phone and text contact with Mr Jukes. The opinion of Dr Godfredson in his Letter of Advice is that “in light of the reciprocal support the friendship may provide…phone contact should be permitted”. He makes no comment in respect of text messaging being permitted one way or the other. Given the phone and text messaging is subject to audit, I consider that text messaging ought be permitted. The fact of auditing acts as a guardrail against misuse, and in a situation where texting is a way to maintain and nourish a prosocial friendship in the modern world, I consider it ought be permitted.
Proposed Draft Order 5.13 – the proposal to have this declared a restrictive condition
16	Turning to consider the Act. Relevantly, it is in the following terms:
Section 40 Application for declaration that condition is a restrictive condition  
(1) On the making or renewal of a supervision order, or on a review of the order or a condition of the order, the Secretary may apply to the court referred to in section 12 for a declaration under section 41.  
(1A) An application under subsection (1) may be made at the same time as an application for the making or renewal of a supervision order or on a review of the order or a condition of the order.  
(2) An application under subsection (1) is commenced by filing a notice of application in accordance with the rules of court, if any.  
(3) As soon as practicable after an application under subsection (1) is commenced, the Secretary must serve on the eligible offender—  
(a) a copy of the notice of application; and    
b) a notice (in the prescribed form, if any) setting out—  
(i) the rights of an eligible offender in relation to the application, including rights of appeal; and  
(ii) the procedure for the hearing and determination of the application; and  
(iii) the implications of a declaration, if made.  
(4) Despite subsections (2) and (3), an application under subsection (1) may be made by oral submission at a hearing for the making or renewal of a supervision order, or on a review of the order or a condition of the order.
17	The Serious Offenders Act 2018 (Vic) (“SOA”) Second Reading speech does not provide specific guidance as to when a restricted condition ought to be imposed, only that any condition deemed restrictive should have minimum interference with the respondent’s liberty and privacy. The Explanatory Memorandum Case does however highlight specifically that a restrictive condition made in accordance with s.40 is designed to have a deterrent effect. Case law provides no specific relevant guidance as to when a restrictive condition should be imposed. 
18	It was said by the applicant that a restrictive condition was necessary to underline the seriousness of compliance with the Supervision Order and to act as a deterrent. 
19	I do not accept the applicant’s arguments in respect of why proposed Draft Order 5.13 ought be declared a restrictive condition.  It is true that the respondent has a past history of sexual abuse of minors, particularly boys under 16 years of age.  He has been convicted and incarcerated on that basis on numerous occasions.  This is his first release on a Supervision Order, however, and there is no present indication that he will be non-compliant with it.  I accept that he has had a previous breach of his Sex Offenders Registration Act 2004 reporting obligations. However this was from many years ago and since then he has been subject to significant rounds of treatment. In fact, no material was presented to suggest that he had been non-compliant with the treatment regime, as it was, imposed on him during his incarceration. In fact, during 2020 he was found to comply with and improve during 31 sessions of therapy. Similarly, he completed and obtained a grasp of relapse prevention strategies over 44 hours of intensive alcohol and other drug programs. This seems to indicate a willingness to comply with ordered treatment programs. There are limited grounds to suggest the deterrent effect of a standard Supervision Order condition needs to be strengthened by making it a restrictive condition.
20	It was also submitted that safety and protection of the community was the paramount consideration in making any decision under the Act and this supported the need for this proposed condition to be made a restrictive one.  This can be accepted.  Effect, however, must also be given to the purposes of the Act which are set out at s1, and particularly to s1(b) which requires the court to consider the facilitation of the treatment and rehabilitation of offenders.  In this regard, the evidence of Dr Godfredson is important.  He gave evidence that J E C must commence his transition to the community at this stage.  Further, that J E C must be given the opportunity to attempt to put into practice the strategies of management in order to learn to cope. As with any trial there comes a risk of failure, which is necessarily a part of learning during the transition period.
21	The imposition of a restrictive condition carries with it a mandatory 12 month term of imprisonment for breach.  This necessitates the respondent being taken from Corella Place into jail. This actively disrupts any transition, even for the most minor and fleeting of transgressions.  I do not consider that this accords with the evidence of Dr Godfredson in encouraging a transition and learning to cope with a transition to the community. This seems to accord with the reservation Dr Godfredson has as to an imposition of a restrictive condition expressed in his Note of Conference at paragraph 5(b). I make it plain that I do not regard the Note of Conference as expressing endorsement of the imposition of a restrictive condition. This is apparent from the terms of paragraph 5 of the Note and also the email clarification where he makes plain that he is not responsible for signing off on the condition sought. Furthermore where appropriate then a court on sentencing for a breach of this condition will retain the right to impose a term of imprisonment if necessary. That discretion is necessary to deal with the particular facts of a breach. 
22	At this stage of his transition, I do not consider any more serious a deterrent is required than the imposition of the Supervision Order with potential consequences being imposed by a court for breach.
23	For those reasons, I will not make the order as sought by the applicant in this regard.
Proposed Draft Order 5.15 (5.16) – the contest over access to various internet sites
24	In the draft ISO provided by the applicant, the applicant proposed an order in the following terms:
5.15(a) – …
5.15(b) – access the internet except:
(i) for the purposes of:
(A)	searching for and applying for employment;
(B)	accessing government services (such as health or taxation information);
(C)	accessing materials for educational study;
(D)	searching for and applying for accommodation;
(E)	internet banking
as approved by and in accordance with the written directions of the PSB; and
as approved by and in accordance with any other written direction of the PSB;
25	To this, the respondent sought to add the following categories:
(F)	accessing streaming services (such as Netflix, Stan, ABC iView);
(G)		accessing his superannuation fund;
(H)		accessing online health services;
(I)		online shopping;
(J)	reading news and/or current affairs (such as ABC News, the Guardian, The Age online);
(K)	activities connected with paying bills (such as accessing the Telstra website to pay a phone bill); or
(L)		accessing email services.
26	The applicant submitted that to accept the respondent’s proposed widening of the categories of internet use would amount to appellable error as it did not accord with the evidence of Dr Godfredson. I reject that submission for the following reasons. First, there is no logical reason why, for example, the Secretary suggests “internet banking” be allowed yet accessing his superannuation fund or paying a Telstra bill is substantively different. Second, the same control mechanisms operate on the applicant’s and respondent’s categories: being no internet access at Corella Place, limited internet access on outings and post use device auditing. These controls apply equally and are just as efficacious in respect of the applicant’s categories as they are to the respondent’s expanded categories. Third, the opinion of Dr Godfredson supports “use of internet” broadly under supervision and then transition under guidance of an internet usage plan. He does not specifically opine in support of the restrictions as suggested by the applicant. This is made plain in the clarifying email filed after the Note of Conference was provided. I accept that supervision by means of audit is appropriate in this case. I otherwise accept the respondent’s expanded categories of internet use are appropriate. 
27	I do not consider that such internet use requires specific approval by the PSA as sought by the applicant. This is because the supervision order is clear in respect of the range of matters the internet can be used for and further his use is subject to audit.  These factors operate as controls on his use. In due course, most likely in the next few months his internet usage plan, as discussed by Dr Godfredson, will be developed and can be incorporated into the application for a final supervision order.  This is to occur within 4 months. 
Non-Publication Order
28	I make an order pursuant to s 279 of the Act that it is in the public interest to prohibit publication of information that might enable the respondent or his whereabouts to be identified as sought. The form of the order under s 279 is set out in paragraph 7 of the formal order signed by me dated, 13 October 2023.
29	Having set out those matters I propose to make an order in the form attached.