IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2020 0148

THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Prosecution	
		
v		
		
SS	Accused	

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JUDGE:	TINNEY J	
WHERE HELD:	Melbourne	
DATES OF HEARING:	23, 24 September, 15 and 22 October 2020	
DATE OF JUDGMENT:	6 November 2020	
CASE MAY BE CITED AS:	Secretary to the Department of Justice and Community Safety v SS (No 2)	
MEDIUM NEUTRAL CITATION:	[2020] VSC 734	

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CRIMINAL LAW – Contravention of conditions of supervision order – Summary hearing – Urinalysis and curfew conditions allegedly repeatedly breached – Whether officers who directed urinalysis had reasonable grounds to suspect accused had consumed drugs – Whether prosecution had disproved reasonable excuse – Accused found guilty on all charges – Serious Offenders Act 2018 ss 169, 213.
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APPEARANCES:
	Counsel	Solicitors	
For the Prosecution	Ms S Flynn QC	Victorian Government Solicitor’s Office	
			
For the Accused	Mr R de Vietri	Victoria Legal Aid	

HIS HONOUR:
Introduction
1	The Secretary to the Department of Justice and Community Safety (‘the Secretary’) brings a prosecution against the accused for eight charges of breaching a condition of a supervision order (‘SO’), pursuant to s 169(1) of the Serious Offenders Act 2018 (‘the Act’). 
2	That subsection provides:
An offender who is subject to a supervision order or an interim supervision order must not, without reasonable excuse, contravene a condition of the order.
3	The prosecution came before this Court by virtue of s 173(2) of the Act. The case was heard and determined summarily by me pursuant to s 174 of the Act, the accused having consented to this course and entered pleas of not guilty on all charges. In compliance with s 174(3) of the Act, the hearing was conducted in accordance with Part 3.3 of the Criminal Procedure Act 2009.
4	There was substantial agreement between the parties as to the facts of the case. A statement of agreed facts pursuant to s 191 of the Evidence Act 2008 was prepared and relied upon in the hearing, obviating the need for a number of witnesses to be called. As a result, only two witnesses were called on behalf of the prosecution. In addition, there were a further two witnesses whose statements were tendered in evidence, incorporating a number of documents including a document showing the results of electronic monitoring of the accused for the relevant period. 
5	It was agreed between the parties that because of the summary nature of the hearing, there would be no requirement for the provision of detailed reasons by the Court for reaching its decision. That fact will be reflected in the relatively brief terms of some aspects of this written decision, although I should indicate that I considered it appropriate to provide reasons that would elucidate some of my thinking in this matter for the assistance of the parties. On that score, I note that there are further charges which have been laid against the accused for other alleged contraventions of conditions of the SO. These matters have been adjourned to a date to be fixed for a contested hearing before me. 
Background
6	By way of very brief background, the accused was convicted of murder in 1998 and received a long term of imprisonment. On 23 August 2019, shortly before his term of imprisonment was to expire, I made a SO for six years under the Act. The SO included conditions: 
•	prohibiting the use of drugs of dependence;
•	requiring the accused to submit to testing for the detection of alcohol or drug use; 
•	imposing a curfew, and 
•	requiring compliance with electronic monitoring.
The allegations in brief terms
7	There are four charges alleging breaches of Condition 7.6 of the SO by failing to submit to urinalysis testing. These breaches allegedly occurred on 17 March 2020, 26 May 2020,  27 May 2020  and 5 June 2020. 
8	There are four charges alleging breaches of Condition 7.2 by failing to comply with the curfew. These breaches allegedly occurred on 3 June 2020, 5 June 2020, 9 June 2020  and 28 June 2020.
The defence position in brief terms
9	In respect of the charges of failing to submit to urinalysis testing, the principal defence is that the applicant had a reasonable excuse in respect of each alleged failure. A subsidiary defence in respect of charges 1, 2 and 5, is that the officer who directed the accused to submit to testing did not have reasonable grounds for suspecting that the accused had breached conditions 7.4 and 7.5 prohibiting the use of alcohol or prohibited drugs. 
10	In respect of the curfew charges, the defence relied upon was that the accused had a reasonable excuse for failing to comply with the curfew. 
The evidence
The prosecution case
11	Two witnesses were called by the prosecution. The first of these was Bronwyn Lewis, an Acting Parole and Specialist Case Manager at Dandenong Community Correctional Services. She has carried out a number of roles with Corrections Victoria (‘Corrections’) over a period of 12 years, and has been the specialist case manager for the accused since 3 February 2020. 
12	Ms Lewis indicated that when she was allocated the supervision of the accused, a handover to her was conducted, and she familiarised herself with his file, including the detention and supervision (DSO) reports of Dr Davis and Dr MacKenzie. She identified the risk factors in the accused’s case. She informed the Court that the accused had been brought before the Post Sentence Authority (‘PSA’) on four occasions, the first of them on 23 December 2019, and then again on 5 February, 28 April and 3 June 2020. She attended all but the first meeting. The minutes of the four meetings of the PSA were tendered through her. The minutes of the meeting on 23 December 2009 indicate that on that date, the accused was required to read out  the curfew condition and confirm that he understood it. Furthermore, the condition in relation to drug testing was read aloud by the PSA. The importance of complying with the conditions of his SO was emphasised to the accused. It was also indicated to the accused that the PSA considered him to be pushing the boundaries in respect of his order, and he was issued with a formal warning. At the meeting on 28 April 2020, he was asked about a number of apparent curfew breaches. He gave explanations for some of the breaches, complained about the difficulty of complying with a 9.00 pm curfew, and stated that he should not be on a curfew at all. He became ‘heightened’ during the meeting and stated that if the curfew was not modified, ‘he may as well go back to gaol’. At the meeting on 3 June 2020, the accused was issued with a formal warning for not having participated in treatment and for having breached his curfew on 13 occasions since 28 April 2020. 
13	Ms Lewis gave evidence of having issued a direction to the accused on 17 March 2020 to attend urinalysis testing at Camberwell Dorovitch between 2.00 pm and 4.00 pm that day. Her reasons for doing so were detailed by Ms Lewis, who spoke of a ‘pattern of behaviour’ by the accused commencing on 5 March 2020. The direction was given in a phone call, with a text message sent afterwards. The accused failed to attend as required. He contacted Ms Lewis at 5.07pm on 17 March 2020, apologising for his non-attendance, and claiming that he had become distracted talking to his mother and had forgotten to attend. He said that he was confused due to a head injury he had sustained. 
14	Ms Lewis indicated that she became aware of the failure of the accused to attend urinalysis on 26 May 2020 as directed by Ms Damianos. On 27 May 2020, Ms Lewis had a supervision session with the accused, conducted by telephone. When asked as to his non-attendance for urinalysis the day before, the accused claimed to have forgotten, making reference to a head injury he had received the week before. As a result of the suspicion she had formed that the accused may have used drugs, based on a combination of matters, Ms Lewis issued the accused with a direction to attend for urinalysis at Camberwell between 10.00am and 12.00pm or between 2.00pm and 4.00pm that day. In addition, she sent a text message reminding the accused to attend shortly after the supervision session finished, and another text message reminder when the accused failed to attend Dorevitch in the morning session. The accused failed to attend for urinalysis that day. 
15	Ms Lewis was cross examined by Mr de Vietri as to her reasons for suspecting drug use leading up to the directions she had given the accused. She was further cross examined as to the various excuses the accused had given for failures to attend for urinalysis or breaches of curfew. I will not summarise this evidence but I have taken it into account. 
16	The second witness called was Vanessa Damianos, a Principal Practitioner at Dandenong Community Correctional Services. She had undertaken various case management roles with Corrections since 2015. She is the supervisor of Ms Lewis and has been responsible for the management of the accused on his SO since March 2020. Before she commenced in her management role of the accused in March 2020, she first reviewed the DSO reports and other material. 
17	Ms Damianos indicated that when things did not go the accused’s way, he was prone engaging in ‘heightened behaviours’ and to attempting to intimidate. 
18	Ms Damianos detailed her reasons for issuing a direction to the accused on 25 May 2020 to submit to urinalysis the next day. She stated that she ‘formed the reasonable suspicion’ that he may have used drugs based on a number of matters which she detailed in her evidence. Having given the verbal direction, she confirmed the requirement by text message because of her awareness of a pattern of forgetful behaviour by the accused. The accused failed to attend for urinalysis. She telephoned him at 5.30 pm and he stated that he had forgotten, in spite of also having been reminded of the requirement by members of Victoria Police who attended his home that afternoon. He informed Ms Damianos of having struck his head on some scaffolding late the previous week. 
19	Ms Damianos re-directed the accused to attend for testing on 27 May 2020, reminding him that he had a supervision session with Ms Lewis that morning. Again, the accused failed to attend for urinalysis.  At about 4.00pm, the accused telephoned Ms Damianos. He was seemingly anxious, and expressed the concern that he would be arrested by police for his failure to attend. In explanation for his failure to attend for urinalysis on 27 May 2020, the accused told Ms Damianos that he had set an alarm on a new mobile phone he had, and that the alarm failed to sound. She issued a further direction to attend for urinalysis on 28 May 2020. This time, he did attend, providing a negative result. 
20	Ms Damianos attended at the meeting of the accused with the PSA on 3 June 2020. She was later informed that he had failed to comply with his curfew that night. 
21	Ms Damianos stated that the accused failed to attend a treatment session with the Forensic Intervention Service on 4 June 2020. He rang her shortly after the appointment time, claiming to be feeling unwell with a migraine. She noticed that his speech seemed to be slurred.
22	On 5 June 2020, as a result of suspicions formed in her mind due to a combination of matters, Ms Damianos directed the accused to attend for urinalysis at Camberwell Dorovitch in either the morning or afternoon session. He failed to attend, later calling Ms Damianos at 4.19pm, claiming to have attended seven minutes late, and asking, ‘Where do I hand myself in?’ In explanation, he claimed to have gone shopping for his mother and purchased a pair of shoes at the Dandenong Market.
23	Ms Damianos was cross-examined by Mr de Vietri. When asked about whether the fact of the accused having been four minutes late for curfew on 18 May 2020, of itself, led her to suspect that the accused was using drugs, she said:
Well, by that stage, my professional opinion was that it was forming a larger picture of consistent non-compliance to his order or regard to his order conditions.
24	Ms Damianos reiterated that it was a combination of incidents and things which, put together, painted a picture of consistent non-compliance by the accused. She indicated that the consistent curfew breaches by the accused were a part of the material that led to her forming a suspicion about him. She also agreed that on many occasions, the accused had returned negative urinalysis screens. In respect of the direction she issued to the accused on 5 June 2020, she denied that she did not have the requisite suspicion that he was using drugs. 
25	In further cross-examination, she was asked about the excuse which had been given by the accused for failing to attend for urinalysis on 27 May 2020. When asked if she accepted that his explanation was a truthful explanation, she replied, ‘I accepted that as an explanation, yes’.
26	When asked if she agreed that the accused ‘demonstrates a pattern of forgetfulness’, she answered:
That’s hard to comment on because I do believe [the accused] has intrinsic motivation to remember things that he wants to remember; specifically, his employment or his animals or his partners at the time…but the order does not come into that intrinsic motivation.
27	Ms Damianos admitted, however, that the accused is a very disorganised person, albeit organised enough in some avenues, such as his Airtasker work.
28	Witness statements of two other witnesses were admitted by consent during the prosecution case. These were from Daniel Hovey and Adam Simon. 
29	Mr Hovey is an Acting Specialist Response Manager with the Electronic Monitoring Program. In his statement, he explained the workings of the electronic monitoring system as it was utilised in the case of the accused. He indicated that the accused breached his curfew on 44 occasions from 1 January to 30 June 2020. These occasions, typically involving breaches of a matter of minutes, were detailed in an appendix to the statement of Mr Hovey. 
30	Mr Simon is an employee of the company Buddi Ltd, which provided the electronic monitoring equipment utilised by Corrections Victoria in the case of the accused. Mr Simon provided an expert analysis report relating to location data generated in respect of the accused for the charged curfew breaches and in some other respects. 
31	Two police interviews of the accused conducted on 27 May 2020 and 6 June 2020 were admitted into evidence by agreement without the need for the interviewing members to be called. The transcripts of these interviews became Exhibits D and E. 
32	In the first interview, the accused was asked about the first three charges of failing to attend for urinalysis. In short, he gave an account of having hit his head on a number of occasions during the period in question. He claimed to have been substantially affected by these incidents, and that his deficient memory was, in part at least,  behind his failure to attend on the three occasions. He also provided further explanations which I will not detail here. 
33	In the second interview, the accused was asked about his failure to attend for urinalysis on 5 June 2020. He gave an explanation of having been at the Dandenong Market, leaving in time to make the urinalysis cut-off but then being unable to start his truck and arriving a few minutes late for testing. He admitted having contacted Ms Damianos shortly after the cut-off point and asking where he could hand himself in. When asked why he said this, he said, ‘Because I’ve run my race. Considering I’ve been stuffing up’. In the interview, the accused told the police about a number of head knocks he had sustained historically and in recent times, which had caused a concussion from which he claimed to be suffering on 5 June 2020. He said he had been ‘very out of it for the last couple of weeks’ and his ‘time management has been shocking’. 
34	Finally on the prosecution case, there was a statement of agreed facts which was made by the parties and filed in the proceeding. Amongst the facts agreed were:
•	The making of the SO with the relevant conditions;
•	The details of the curfew condition as it existed from time to time as a result of lawful directions issued by the PSA;
•	That the accused knew about and understood the directions at all times;
•	That the accused appeared before the PSA on 5 February, 28 April and 3 June 2020 when formal warnings were issued about previous contraventions of conditions of his SO including his curfew;
•	That Ms Lewis and Ms Damianos were ‘officers’ for the purpose of the SO and verbally communicated directions to the accused to undergo urinalysis on the occasions relevant to each of charges 1, 2, 3 and 5;
•	That the accused failed to attend as required on all of those occasions, and gave explanations as set out in the Statement of Agreed Facts;
•	That the electronic monitoring bracelet affixed to the accused was at all times in good working order and able to record and transmit the GPS location of the accused to the Electronic Monitoring Centre (‘EMC’);
•	That the accused had certain conversations with staff members of the EMC at particular dates and times.  
The defence case
35	The accused gave evidence in his defence in the hearing. He gave evidence of the effect a number of head knocks had had upon him over the years. In respect of charge 1 (fail to attend urinalysis) he said that he had been with his mum talking about a number of issues including her cat, which had died, and her dog which had a vet’s appointment. He had stayed with her to comfort her, and had ‘just lost track of time’, leaving too late to get to the urinalysis appointment. 
36	Concerning charge 2 (urinalysis), he said that he had been at a work site all day, had lost track of time, and ‘just completely forgot all about having to go’. He did say that he had hit his head on some scaffolding at work and was ‘all over the shop’ for a couple of days, but did not claim that a head injury was the cause of his missing urinalysis. 
37	In respect of charge 3 (urinalysis), the accused gave an account of having changed telephones, and not having his usual alarm. He said he had failed to set an alarm. As for missing the appointment, he said, ‘that’s when you’ve got to set your alarm, and I didn’t do that, so, yeah,---I really just did forget. I’m really sorry…And the day just got off on me’. 
38	In respect of charge 4 (curfew), he said that he was on the way home from his girlfriend’s place when roadworks impeded his speed along the Monash Freeway. He said he was late home because of the roadworks. He also indicated that his truck had not been running well. 
39	In respect of charge 5 (urinalysis), his explanation for being late turned on a visit he made to Dandenong Market in order to have some repairs carried out on his mobile phone. Time flew at the market and then he went to Woolworths to do some shopping. While he was there, Ms Damianos had called to remind him of the appointment. He left the supermarket with a full trolley which he had then loaded into his truck, which took some time. He left just before 3.30 pm, leaving half an hour to get to Camberwell. He got there seven minutes late. 
40	In respect of charge 6 (curfew), the accused said he started unloading his truck outside his property before 9.00pm. He had misplaced his keys, forcing him to jump over the fence to be able to get inside. He was on the property but not within range of the beacon by the required time. 
41	In respect of charge 8 (curfew), the accused said that his dog had attacked his cat. He decided to take the cat to his mum’s place. He talked with his mum for a while. When he left, there was an oil leak in his truck, limiting the speed at which he could drive and forcing him to pull over. This caused him to be home late. 
42	In respect of charge 9 (curfew), the accused gave a detailed account of having gone shopping at Coles at Waverley Gardens and then having tried but failed to use the near-field communication (‘NFC’) capacity of his phone to pay, having forgotten his wallet. He spent time trying to activate NFC, but was unable to do so on his new phone. He then had to leave without buying the groceries, raced home, but was late to arrive. 
43	I note that there were a number of differences between the excuses offered by the accused to the Court in his sworn evidence and the accounts he had earlier given to Corrections staff, police or others. 
44	In his evidence, the accused said that his impression was that every time he was late for his curfew, he would be required to do urinalysis the next day as punishment. He claimed that he had done ‘everything he possibly could’ on his order. He always had genuine reasons for being late, claiming that it was hard to manage or navigate the world after so long in custody. Far from thumbing his nose at the order, he had tried his ‘darndest’, having ‘really, really, really tried’. He felt that he had been treated like a child ‘this whole order’ and been held to ‘an impossible standard’. He further claimed that his former girlfriend had been put under great pressure from the police and Corrections to turn against him.
45	The accused was cross-examined by Ms Flynn QC for the Secretary commencing late on 24 September 2020. He reiterated his view that he was required by Corrections to undergo urinalysis as a form of discipline for being late for curfew. He disputed that he had breached his curfew on 44 occasions between 17 January and 30 June 2020.  He said that he had ‘never, ever, ever’ said that he was not going to do what he was directed to do, and was never late on purpose. He said that he had done everything he could ‘within my capabilities’ to comply with the order. He was not, however, ‘your average person’. He was treated like a child molester, he said, and hated the order and did not want to be on it. He maintained that he had been successful on the order, having not committed any crime in the time since it commenced. He did admit to having had drugs enter his system, but said that he had not willingly committed any crime during the period of the order. 
46	Cross-examination of the accused continued on 15 October 2020. He was questioned about the evidence he had earlier given about a number of head injuries sustained by him. He denied having claimed to have sustained injuries when he had not done so, and refuted the suggestion that he had exaggerated his memory problems in connection with breaches of the SO. Indeed, he said that if anything, he had not done the memory difficulties justice. His memory, he said, was shocking. He had managed to do well in his Airtasker work because of the willingness of his customers to overlook his lateness on occasions. He described steps he had taken to address his forgetfulness. He used notes, alarms, and other measures. 
47	The accused claimed that he had always had compliance with the SO as his ‘highest priority’. He would try to spend every last minute with RF, but on occasions, there were roadworks on the Monash Freeway which he could not foresee. Other times, for whatever reason, things would go wrong in life. He did not ever wish to be late, however. He never dodged a drug test or anything else. He always had to ‘squeeze everything in and it’s been really hard’. If he didn’t have a curfew, he said, he would have been okay. But it was something that was there to prevent him from being as good as he could have been. He denied prioritising other aspects of his life above the SO. 
48	The accused admitted having attended at the PSA on 23 December 2019, and having the curfew condition read out to him. They indicated to him how important the condition was, something which he always knew. When it was again put to him that he had been late on his curfew on 43 different occasions, he said, ‘When you put it like [that] it’s horrible. It is. It’s not something I set out to do and I apologise for that. It’s honestly not’.
49	The accused claimed not to remember having again gone before the PSA on 5 February 2020 and being told that the breaches of curfew and constant boundary pushing were not acceptable. He did recall being told by the PSA that he could not pick and choose the conditions of the SO with which he would abide.
50	The accused was then asked about the events of 17 March 2020. When asked why he had not attended at Dorovitch Pathology for urinalysis that day, he said he did not know and could not remember. When it was put to him that he simply chose not to attend, he denied that that was so. He said he was not taking drugs and there was no way he would have chosen not to attend. He said that time got away from him when he was with his mother, he was in the moment, and forgot to attend testing. This was not a matter of his having prioritised other things in his life. It was a matter of his ‘not having the capacity at that time in that moment to remember to go there’. As for the reminder SMS sent to him, he was not constantly checking his text messages. He did not use a note to remind him that day. He was, he said, desperately sorry that he did not go.
51	The accused admitted being back before the PSA on 28 April 2020, via video link. The Authority told him he had demonstrated a lack of compliance, and that he was not giving the order the priority it required. He said that he had always been aware that he could go to gaol for breaches of the order. 
52	At this point in cross-examination, the Court day concluded, and the case was adjourned until 22 October 2020 at 10.15am. 
53	At the re-commencement of cross-examination on the morning of 22 October 2020, the accused did not answer the first question asked of him. He then said that he was not feeling well and had a migraine. The Court adjourned briefly to enable Mr de Vietri to confer with his client. On the resumption, counsel related what he had been told by the accused, which was that he had awoken with a migraine and had not been well enough to participate in a neuropsychological assessment which had been scheduled. Mr de Vietri applied to adjourn the hearing to the next available date. In the end, I adjourned the case until 1.00 pm, to enable to the accused time to recover and to seek medical attention should he wish to. On the resumption, the accused did not attend at the video-link room, having refused to do so. He claimed to be too unwell to attend. I was provided further information as to what had transpired before Court in the morning. Amongst other things, I was informed that the accused had complained of what were described as flu-like symptoms and a migraine. During a further brief adjournment, the accused was informed by prison staff that it was my intention to resume the case, with or without his attendance. He refused to take a call from his legal representatives. Again, he refused to attend the video-link room. Mr de Vietri applied for the adjournment of the case. Ms Flynn opposed this course, submitting that the accused was holding the Court to ransom. 
54	In the circumstances, I refused the defence application for an adjournment. Amongst the reasons for this were the somewhat tortuous history of the matter, the repeated refusal of the accused to attend before the Court in spite of his knowledge that this was required, and the fact that, in  essence, his defence to the respective charges was already before the Court, by virtue of things he had told police and others in the past, the complete evidence-in-chief he had given, and the extent to which he had already been subject to cross-examination. I did not consider the accused’s cause would be harmed by his unavailability for further cross-examination. If anything, the prosecution would be denied the opportunity to further test him. The accused had, to my mind, made a deliberate and conscious decision to absent himself from the continued proceedings, without a legitimate reason. In my view, it was appropriate that the case proceed in his absence, but with the continued involvement of defence counsel. 
55	I can indicate that as I made clear to the parties at the time of my decision to proceed with the case in the absence of the accused, I will not draw any adverse inference against him as a result of his failure to attend Court, be subjected to further cross-examination,  and further participate in the proceeding.
Submissions of the parties
56	The Court had the benefit of written and oral submissions from the parties of a uniformly high standard. I refer to oral submissions made on the first day as to the elements of the offence under s 169 of the Act, the written outlines on behalf of the Secretary and the accused tendered on 22 October 2020, and oral submissions made on the same date. In keeping with my determination, in accordance with the submissions on both sides, that detailed reasons for my decision on these charges are not required, I do not intend to canvass the respective submissions in detail. These are clearly able to be discerned from the written and oral material. Of course, I have taken all of the submissions into account. Furthermore, insofar as the submissions on both sides descended to a consideration of authorities touching on a number of legal issues, I will not discuss the authorities to any significant extent in these reasons, and nor do I intend to provide a detailed treatment as to any of the legal issues. 
57	In respect of the elements of the crime set out in s 169 of the Act, these were described somewhat differently by Ms Flynn and Mr de Vietri, but nothing turned on this. For what it is worth, it seems to me that the elements, each of which would be required to be proved by the prosecution beyond reasonable doubt, can be described thus:
(i)	The accused was subject to a supervision order containing a particular condition;
(ii)	The accused contravened the condition by an act or omission;
(iii)	The accused did not have a reasonable excuse for that contravention.
58	As I indicated earlier, there were two aspects to the defence of the accused. First, in respect of three of the four charges of contravening the urinalysis condition, it was asserted on behalf of the accused that any suspicion held by the officer who gave the respective direction in each charge to undergo urinalysis was not a suspicion based on reasonable grounds. Secondly, and applicable to all eight charges, it was asserted that the accused had a reasonable excuse for contravening the condition in question in each charge, or, put more properly, that the prosecution had failed to prove beyond reasonable doubt that the accused did not have a reasonable excuse for his contraventions.
59	There were, therefore, two issues to be determined. These were, first, in respect of charges 1, 2 and 5, did the relevant officer have reasonable grounds to suspect that the accused had consumed drugs, and secondly, in respect of all charges, has the prosecution proved beyond reasonable doubt that the accused did not have a reasonable excuse for contravening the condition in question in the particular charge. 
60	As it was put by both sides, the first matter was not something which was an element of the crime as such, but rather, was an aspect of one of the elements, in circumstances where the element could not be proved if the precondition of a suspicion on reasonable grounds was not satisfied. The precise element to which this precondition related differed in the submissions of the parties, but the parties were at one about the proposition that in order to prove the guilt of the accused on any of the charges of failing to submit to urinalysis, there needed to be proof that the requirement to submit to urinalysis was made by an officer who had reasonable grounds to suspect that the accused had consumed drugs. 
Were there reasonable grounds for the directions given by the officer in respect of charges 1, 2 and 5?
61	That Ms Lewis in respect of charge 1, and Ms Damianos in respect of charges 2 and 5, had the requisite suspicion at the time they gave directions to the accused to undergo urinalysis, was not in question. What was in dispute was whether they had reasonable grounds to so suspect. 
62	The applicable law was succinctly stated as follows by the High Court of Australia in George v Rockett:
When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
63	The test is an objective one, turning on an assessment of the facts available at the time when the direction was given. Were there objective facts in existence at the time of the direction by the officer which would be sufficient to induce a suspicion of drug use by the accused in the mind of a reasonable person? In that sense, it can be seen that the particular matters relied upon by the officer, as indicated in her evidence before me, are not the critical issue. The question is whether the available objective material would be sufficient to produce the requisite suspicion in the mind of a reasonable person. 
64	Ms Flynn in her written outline pointed out, based on authority, that:
The information upon which a belief or suspicion may be grounded depends on all of the circumstances that prevailed at the relevant time. Regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances. These circumstances should not be taken in isolation and may be viewed as cumulative in nature. 
65	In paragraph 15 of her outline, Ms Flynn set out some of the important matters surrounding the particular events which led to the directions being given by each of the officers. Then, in a table appearing thereafter, she set out the particular matters pointed to by the respective officers. 
66	Ms Flynn submitted that I should find that each of Ms Lewis and Ms Damianos had reasonable grounds to suspect that the accused had been using drugs when they issued the relevant directions to him. 
67	Mr de Vietri in his written outline set out the portions of the evidence of Ms Lewis and Ms Damianos in which they explained why they issued the directions. Mr de Vietri submitted that in each case, any suspicion which may have existed was not based on reasonable grounds, looking at the objective facts that existed at the time. 
68	Having considered the entirety of the evidence, and the submissions made by the respective parties, I am satisfied that there were reasonable grounds for the two officers to have the requisite suspicion at the time of issuing the directions to the accused to undergo urinalysis in respect of each charge of contravening condition 7.6 of the SO. 
Has the prosecution proved that the accused did not have a reasonable excuse for contravening the condition in question in each charge?
69	As I have made clear thus far in this decision, the explanations given by the accused for the various breaches of conditions of his SO alleged against him in the eight charges before me were in some cases contained in several sources; 
•	Things said to one or other or both of Ms Lewis and Ms Damianos;
•	Things said to staff members of the Electronic Monitoring Centre;
•	Things said to members of Victoria Police, principally in one or other of the recorded interviews; and 
•	Things said on oath in his evidence before me. 
70	I have not endeavoured to set out or summarise all of this material, contenting myself, rather, with the above brief summary of what the accused said in his evidence-in-chief before me in justification of his actions. As I noted earlier, there were some differences between this account and earlier accounts offered by the accused in justification of the various offences to the people to whom he spoke. I have had regard to all of the evidence.
71	It was accepted between the parties that there was an evidential burden on the accused to point to evidence suggesting the possibility of a reasonable excuse, pursuant to s 72(1) of the Criminal Procedure Act 2009. Ms Flynn conceded that the accused had done so here, and accepted, as is clearly the case, that it then fell to the prosecution to prove beyond reasonable doubt that the accused acted ‘without reasonable excuse’. 
72	I consider that the authorities would justify the view that a reasonable excuse, as was stated by Dawson J in Taikato v The Queen, ‘is no more or less than an excuse which would be accepted by a reasonable person’. The test is an objective one, depending on the circumstances of the individual case, as well as on the purpose of the provision to which the defence of ‘reasonable excuse’ is an exception.
73	The provision in question is an enforcement provision contained within an act the primary purpose of which is to protect the community from serious offenders who present an unacceptable risk of harm to the community by making them subject to ongoing detention or supervision. A secondary purpose of the Act is to facilitate the treatment and rehabilitation of those offenders. It can be considered, therefore, as submitted by Ms Flynn, that the purpose of s 169 is to protect the community and facilitate the treatment and rehabilitation of offenders by compelling them to comply with conditions of SOs. As pointed out by Ms Flynn in her written outline, the curfew and drug testing conditions were important components of the overall SO. It is perfectly clear, to my mind, that what is required by the legislation is full compliance with the conditions of a SO, in order for the purposes of the overall scheme to be advanced.
74	Mr de Vietri submitted that the accused’s state of mind ‘may be very much relevant to a “reasonable excuse” relied upon by the accused’. Ms Flynn challenged that contention. Accepting, while not deciding, that Mr de Vietri’s submission may be correct, the fact remains that the question of whether the accused had a reasonable excuse for any one of his contraventions is to be decided on the basis of a consideration of the entirety of the objective circumstances of the individual contravention. 
75	As pointed out by Ms Flynn, there were important background facts to all of the alleged offences. These included:
a)	Court proceedings which have emphasised the importance of compliance with the conditions of the SO;
b)	The efforts of those supervising the accused to emphasise and discuss the need for compliance with the conditions of his order during supervision sessions;
c)	The four attendances by the accused at the PSA where the alleged breaches were discussed. The importance of compliance and the consequences of contravention were clearly spelled out;
d)	The overall poor compliance of the accused in respect of the curfew condition and the instances of missed treatment and supervision appointments. The charged offences were not isolated incidents, and must be considered in the context of the accused’s overall compliance with the conditions of the SO.
76	Mr de Vietri, in his written submissions on behalf of the accused, sought to rely to a substantial extent on the fact of the accused having suffered from an acquired brain injury (‘ABI’) as a result of a number of head knocks over the years. He submitted: 
In the present case, the defendant’s excuses involve chronic forgetfulness, properly contextualised by the fact that the accused suffered from an Acquired Brain Injury which causes his memory functioning to be in the ‘extremely low range’.  
77	The description of the memory functioning of the accused being in the ‘extremely low range’ was based on the report of Professor Simon Crowe. I accept that the report of Professor Crowe does diagnose in the accused an ABI and, in spite of his normal intelligence,  impaired memory functioning seemingly as a result of the ABI. The report of Professor Crowe, however, does not go so far as to indicate that the accused experiences any particular impact on his level of functioning as a result of his impaired memory. 
78	In his oral submissions, faced with the above difficulty, Mr de Vietri submitted that he was relying on the ‘forgetfulness’ of the accused in a broader sense than might normally be implied by that word. He submitted that the memory deficits of the accused ‘bleed into features of his life like organisation, time management, losing track of time easily’. It was submitted that the expert evidence of Professor Crowe along with the evidence of the accused:
would allow the court to conclude that he is someone who, as a result of his acquired brain injury, amongst other things such as spending 20 years in prison, honestly struggles with organising his time, he’s absent minded a lot of the time, does, when he gives evidence, that he loses track of time completely, gives that evidence genuinely, and perhaps even to extrapolate it out so far as to accept that he is a person who struggles making appropriate decisions about prioritising tasks. 
That’s the manner in which I rely on chronic forgetfulness, not a strict sense of forgetting the facts necessarily but struggling with those cognitive skills in life.  
79	Mr de Vietri acknowledged that there was no basis for me to reach a conclusion on the expert evidence of Professor Crowe that the memory deficits of the accused do, indeed, bleed over into those various aspects of the accused’s life as posited by Mr de Vietri.
80	To my mind, there is no expert evidence before me which would warrant the conclusion that the accused does, indeed, suffer from ‘chronic forgetfulness’, or that his memory deficits have affected his functioning in the way asserted by Mr de Vietri. Nor, as far as I can assess it, is there any other evidence in the case which would warrant the conclusion that the explanation for the failure of the accused to comply with the curfew and drug assessment conditions on the occasions alleged is to be found in deficits of memory. Ms Flynn submitted that notwithstanding the memory deficits diagnosed by Professor Crowe, it was unclear how those deficits actually impact upon the accused. In my view, that is correct. Furthermore, insofar as Ms Flynn submitted that there were a number of reasons why, even if the accused did have memory problems affecting his compliance with the conditions, these would not be sufficient to amount to a reasonable excuse, I accept those submissions. 
81	I should say, also, that insofar as Mr de Vietri relied upon this expanded concept of ‘forgetfulness’ extending to absent mindedness and an inability to schedule, prioritise and organise, I do not accept that the charged failures of the accused to abide by his curfew and attend for urinalysis can be explained by absent mindedness, or an inability to schedule, prioritise and organise as a normal person would do. The report of Professor Crowe would not support such a contention, and insofar as the evidence of the accused might suggest such difficulties, I would not accept that evidence. 
82	A consideration of the various excuses proffered by the accused, as summarised earlier in these reasons, reveals that far from there being any consistent claim of his having missed urinalysis appointments or been late for the curfew due to failures of memory or an inability to schedule or organise things in his life, the predominant theme is of the accused having contravened the conditions on the occasions alleged as a result of a combination of bad luck with various things including his animals, the traffic, the mechanical condition of his vehicle, the alarms on his mobile phone, his method of payment in the supermarket, and an overall and oft repeated failure to not accord the requisite importance to the need to fully comply with the conditions of the SO. 
83	On that score, I note that there were repeated instances of the accused missing his curfew, not by hours because he had entirely forgotten about it, but by a few minutes on regular occasion because he repeatedly failed to head in the direction of his home or that of his girlfriend with sufficient time to get there. Furthermore, in the case of the urinalysis breaches, he consistently left it until the last moment to take himself to the pathology laboratory, filling his days with activities which seemingly, to him, assumed more importance than the obligation to attend for testing. 
84	Mr de Vietri submitted that no danger or harm was caused by the curfew breaches, and that in respect of the urinalysis breaches, considering that the accused regularly attended drug screening on the days surrounding breaches, and continued to engage in drug treatment and medication, ‘no acute danger arose out of his forgetfulness to attend’. 
85	As I have already indicated, I do not think that the failure of the accused to attend for urinalysis can be put down to forgetfulness. In any event, in respect of those contentions, whether any actual danger or harm resulted is not the point. These were important conditions of the SO, required to be complied with fastidiously. They were part of an array of conditions designed to further the purposes of the Act in protecting the community and facilitating the rehabilitation of the accused. The contraventions of the conditions were important and repeated failings which may have reduced the effectiveness of the conditions. Furthermore, in respect of the urinalysis failures, these had the result of denying the authorities the capacity to ensure compliance with the conditions of the SO prohibiting the consumption of alcohol and drugs. 
86	The underlying failure to prioritise compliance with the relevant conditions is entirely consistent with the attitude the accused seemingly took to the overall order as displayed in his behaviour towards his supervisors, those treating him, and the PSA on occasions. That attitude was apparent, also, in some aspects of the sworn evidence the accused gave before me. His resistance, indeed, resentment, towards the SO, has unfortunately shone through very clearly in his conduct and attitude from a reasonably early time in the course of the SO. 
87	A further submission made by Mr de Vietri in respect of the urinalysis breaches was that the ‘reasonableness’ of the excuses given by the accused should be assessed in light of the fact that the accused provided a number of negative screens either side of the offence dates. Ms Flynn urged me, correctly in my view, not to act on that submission. In my view, the provision of repeated negative drug screens would say nothing at all about whether the excuse relied on by the accused for his failure to undergo urinalysis on the charged occasions is reasonable or not. 
88	The question arose during the hearing as to the honesty of the excuses advanced by the accused, in his evidence and otherwise. 
89	Before addressing some comments to that question, I should make it clear that in my view, even were the excuses of the accused to be accepted at face value as being truthful and accurate, they fall substantially short of amounting to reasonable excuses. The submissions of Ms Flynn to which I have referred highlighted the reasons why the proven memory deficits of the accused could, in the circumstances, provide no real explanation for his contravention of the conditions of his SO. Nor could the time management or organisational difficulties seemingly relied on by the accused provide him a reasonable excuse in respect of any of the charges. These propositions may be illustrated by a consideration of one, only, of the excuses relied upon by the accused.
90	In respect of the breach of curfew charge represented by charge 9, the accused gave a very convoluted account about how he ran into difficulties in paying for a trolley full of purchases he sought to make at the Coles supermarket at Waverley Gardens. He had forgotten his wallet and hence sought to pay using the NFC capacity of his mobile telephone. Having initially failed to do so and as his curfew loomed, he went to great lengths to establish why the facility would not work for him, going to the extent of viewing a YouTube video in the hope of resolving the issue. In the end, he had to leave without completing his purchase. He raced home but was late for his curfew.  
91	In my view, the unsatisfactory nature of this excuse was perfectly clear. The electronic monitoring data showed that the accused did not depart his home in Dandenong until 8.31pm, arriving at Waverley Gardens at 8.40pm. He did not depart there until 9.07pm, arriving home at 9.12pm. It might be viewed as having been somewhat foolhardy for the accused to have departed his home 29 minutes before the expiry of his curfew to go on a shopping expedition. He clearly did not have time to do that, and no reason was put forward why there was any imperative for him to go shopping at all that night, or why he could not have gone earlier. As for wasting time watching a YouTube video as his curfew approached, if it had not already passed, there is simply no explanation why he would have done such a thing. The ABI with which the accused has been diagnosed has not interfered with his cognitive abilities. He is a man of normal intelligence. He must have known that this shopping trip would inevitably lead to his late arrival home. He knew that he was required home from 9.00 pm. He knew this was a legal requirement of his SO. He had been frequently warned of the importance of compliance. And yet he departed his home as the curfew hour drew nigh.
92	It is difficult to consider this particular breach as being anything other than deliberate. Whether that is so or not, the excuse of the accused, far from being a reasonable one, was completely unacceptable. 
93	In my view, much the same can be said for his excuses in respect of the other charges. Taking the most benign view possible of his conduct, the accused did not accord compliance with the conditions of his SO the priority it warranted. A less forgiving view would be that in light of his very negative attitude to the order imposed against him in this Court last year, and in particular, towards some of its conditions, which he considered unfair and unnecessary, the accused flexed his muscles by the means of petty acts of defiance, deliberately breaching conditions when it suited him to do so.  
94	I now turn to the question of the honesty of the excuses advanced by the accused. Mr de Vietri urged me to accept all of the excuses advanced by the accused in his evidence in Court and the things he said to others as being ‘genuine and honest’. Repeating what I have already said, namely, that even a full acceptance of the accounts of the accused would leave them far short of amounting to reasonable excuses, I cannot accept the submission of Mr de Vietri as to the honesty of the accused. In a number of respects, in my view, there would be good reason to doubt the frankness of the accused in the evidence he gave before me. In particular, I can make it clear that insofar as he claimed that he had done ‘everything he possibly could’ and tried his ‘darndest’ to abide by the conditions of his SO, those claims fly completely in the face of his proven conduct, and I do not accept them. As for his claims of repeated head injuries in recent times impacting upon his memory and functioning, arising from a number of causes, there was an air of unreality about those convenient claims, which were unsupported by any expert or other evidence. It would stretch credulity to think that the accused could really have been so clumsy or unlucky as to have suffered the number of head knocks of which he complained, and upon which he placed reliance in excusing his conduct. 
Conclusion
95	I am satisfied beyond reasonable doubt that all of the elements of the charged offences have been proved against the accused by the Secretary. I therefore find the accused guilty of all eight charges.