IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	

Secretary to the Department of Justice and Community Safety 	Applicant		
			
v			
			
Johnathan Keen (a pseudonym)	Respondent		

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JUDGE:	Judge Pillay 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	3 April 2020	
DATE OF JUDGMENT:	3 April 2020	
CASE MAY BE CITED AS:	Secretary to the Department of Justice and Community Safety v Keen (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2020] VCC 370	

REASONS FOR RULING
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Subject:		Supervision Order Application
Catchwords: 	Supervision order – whether offender poses unacceptable risk of committing a serious sex offence - extradition
Legislation Cited:	Serious Offenders Act 2018
Cases Cited:	Nigro v Secretary to the Department of Justice (2013) 41 VR 359; Secretary to the Department of Justice and Community Safety v ST [2019] VSC 722
Ruling:		Ex tempore: Application granted

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr P Holdenson QC	Victorian Government Solicitor’s Office

For the Respondent	Mr E Barbara		

HIS HONOUR:

1	Mr Holdenson QC, appearing for the Secretary to the Department of Justice and Community Safety, makes application for a supervision order under s 13 of the Serious Offenders Act 2018 (Vic) (“the Act”). In the alternative, he makes an application for an interim supervision order under s 46(1) of the Act.
2	The respondent is represented on the application by Mr Barbara. The respondent opposes the making of the supervision order on two grounds. First, that the respondent will be extradited to South Australia upon his release from custody on 9 April 2020, and in any event wants to relocate there. Mr Barbara argues that the imposition of a Victorian supervision order is not compatible with (i) the applicant being extradited to South Australia and (ii) the applicant’s intention to reside with his mother in South Australia. Secondly,  and perhaps in furtherance of these primary submissions the respondent argues that the report of Ms Chan should not be admitted.  If this objection to the admission of the report was upheld it would deprive the applicant of the necessary expert material it is required to rely on by reason of s.13(2)(b) of the Act.  Primarily this was because it was said that the factual underpinning of Ms Chan’s report was unsound rendering the opinion useless.
3	In closing Mr Barbara seemed to abandon his attack on Ms Chan’s report and evidence. Even without that concession I would not accept the submission of the respondent as to the inadmissibility of her report and evidence.  The factual basis for her report was well set out and fundamentally not challenged in cross examination.  I admitted her report and was greatly assisted by it and her evidence.  I have relied on that evidence in coming to my decision.
Background
4	The respondent’s relevant background offending history is set out:
a)	In the reasons for sentence of his Honour Judge Leckie dated 26 February 2006;
b)	The reasons for sentence of his Honour Judge Ross dated 30 October 2008;
such that I will not repeat it in detail.
The Law
5	As I understand the procedural history of this matter application has been made both for a final order, pursuant to s. 13 and also an interim order pursuant to s. 46(4). Given the time of the applications, the fact that extensive material has been filed, the hearing of the matter in full involving cross examination of the relevant expert, written and oral submissions and the impending release date of the respondent I consider that it is in the interests of justice that I make a final order.  This is because it provides certainty to the parties and deals with the matter in an efficient manner rather than requiring a reattendance within 4 months. 
6	Under section 14 of the Act, the court must only make a supervision order if it is satisfied that the respondent poses an unacceptable risk of committing a serious sex offence if a supervision order is not made and the respondent is in the community.
7	Section 1 of the Act reads in part as follows:
“The purposes of this Act are— 
(a) primarily, to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision; and 
(b) secondly, to facilitate the treatment and rehabilitation of those offenders; and 
…”
8	The respondent is an eligible offender for a supervision order application under s 8 of the Act by virtue of the fact that he is serving a custodial sentence in relation to a serious sex offence in Victoria. 
9	In Secretary to the Department of Justice and Community Safety v ST, a decision of His Honour Tinney J of the Supreme Court, His Honour set out the relevant legislation and current authority at paragraphs [20-34]. I will not repeat those paragraphs in total as they are well understood principles in these matters. I have however set out the leading principles from His Honour’s judgment:
Unacceptable Risk
The term ‘unacceptable risk’ is not defined in the Act, but in the context of the now repealed Serious Sex Offenders (Detention and Supervision) Act 2004, the meaning of the term was considered by the Court of Appeal in Nigro v Secretary to the Department of Justice (‘Nigro’).
The Court held:
Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. 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 circumstances, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence.
The Court further stated:
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.
The Court in Nigro made it clear 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.
The Evidence
10	The application was supported by evidentiary material filed by Mr Holdenson QC. In particular, there were numerous filed and tendered documents: the report of Rachel Chan dated 29 November 2019, the reasons for sentence of His Honour Judge Leckie of the County Court of Victoria dated 26 February 2006, the reasons for sentence of his Honour Judge Ross of the County Court of Victoria dated 30 October 2008, the judgment of the Court of Appeal dated 4 April 2011 and the antecedents of the respondent.
11	 Ms Chan opines that the respondent qualifies as a high risk of reoffending if not subject to supervision order.  Such offending is likely to be sexual assault of minors. The gravity of the potential offending and its consequences are undoubtedly serious. Such behaviour is likely to be penetrative sex and fondling behaviours. 
12	On any view the evidence of Ms Chan is clear, cogent and reached on an acceptable basis: examination of relevant records, history taking and examination combined with Ms Chan’s expertise and experience in the field of psychology.
13	I find that the respondent poses an unacceptable risk of committing a serious sex offence if a supervision order is not made and the offender is in the community.
14	I now turn to consider each of the matters items in dispute in respect of the proposed order.
Extradition and Relocation to South Australia
15	The material filed with the Court indicates that South Australia will, at some point, seek extradition of the respondent to face charges relating to historical sexual abuse of minors charges.
16	However the point which arises prior to a consideration of this argument is that where the Court is satisfied that the respondent poses an unacceptable risk, pursuant to s. 14, the only further condition that the Court must be satisfied of is that the such risk occurs in conjunction with the offender being in the community.  Here that condition will be satisfied upon the respondent’s release on 9 April 2020.
17	Victoria Police state that South Australian Police intended to seek extradition immediately upon the respondent’s release from custody however, given the impact of COVID 19, such arrest and extradition will occur in a “timely manner”.
18	Given this, it may well be days, weeks or months before such a proceeding is begun. Further it is unclear whether such extradition will be successful. In those circumstances, without a supervision order the respondent will be “in the community”. The second component of s. 14 will then be satisfied and the Court will be bound to make the order.  It is the complete uncertainty regarding the South Australian charges that the applicant raised as to why there should be little regard paid to the extradition proceeding.  I agree with that submission.
19	The respondent also argued that any supervision order would hamper his ability to reside with his mother in South Australia.  He argued that she had been a long term support to him.  There was no evidence called by the respondent as to his relationship with his mother, her circumstances and ability to provide a stable home for him or what access to the intensive treatment that he may get in South Australia that his mother could help him access.  This uncertainty in the evidence makes it impossible to assess the respondent’s submission against the clear evidence provided by Ms Chan as to the need for a monitored environment with strict control to enhance the protection of the community.
Duration of the Order
20	The applicant submitted that the order should be for a period of 8 years.  The respondent argued for a lesser period but could rely on no evidence to support that submission.  In evidence Ms Chan stated that the entrenched psychological issue that led to the serial offending in the respondent’s past needed “decades” of treatment.  She further stated that at least a decade of treatment would be needed to treat, embed, practice and measure changed behaviours such that the respondent’s risk profile would be lowered.  In that setting it could be argued that the order should be at least 10 years.  Mr Holdenson QC did not pursue such a submission. Instead his client pressed for 8 years as this was the basis of the application made and ought not be changed in the running so as to disadvantage the respondent.  He further noted that the order would be subject to periodic review at 3 yearly intervals and this acted as a better guide to the length of the order ultimately.  I agree with those submissions.
Proposed Order 7.5
21	Different considerations arise when regard is had to proposed order 7.5.  This order relates to the age of the children the respondent can have contact with.  It was said by the applicant that it should be limited to children younger than 16 given the antecedent offending history of the respondent ie. with children under that age.  However the evidence of Ms Chan was that while that was the antecedent history and was the cohort of minor most of concern she would also consider children under 18 at risk.  Given this evidence and the immediate effect of the order I consider the order should be changed to specifically identify all children under 18 be limited in contact with the respondent.
22	Given my above findings I will grant the application and make supervision orders in the form the applicant submits, save for order 7.5 which I will vary.