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

Secretary, Department of Justice and Community Safety 	Applicant	
		
v		
		
Aaron Davidson (a pseudonym)	Respondent	

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JUDGE:	Tran	
WHERE HELD:	Melbourne	
DATE OF HEARING:	4 November 2022	
DATE OF RULING:	5 December 2022	
CASE MAY BE CITED AS:	Secretary, Department of Justice and Community Safety v Davidson (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2022] VCC 2163		

RULING
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Subject:	SUPERVISION ORDER
Catchwords: 	Fundamental human right to liberty – where serious sex offender on supervision order with residential facility condition – where failure to put in place recommended transition supports – where no reasonable alternative accommodation
Legislation Cited:	Serious Offenders Act 2018
Cases Cited:	Williams v The Queen (1986) 161 CLR 278, Garlett v Western Australia [2022] HCA 30, Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Ruling:	Supervision order confirmed	

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Ms K Argiropoulos	VGSO	
			
For the Defendant	Ms D Dempsey	Victoria Legal Aid	

. 

HER HONOUR:

1	Aaron Davidson is 54 years old. He has spent less than one year of his adult life free in the community. 
2	This is the review of the supervision order currently imposed on Mr Davidson under the Serious Offenders Act 2018 (“the Act”), on the basis that he poses an unacceptable risk of committing a serious sex offence if a supervision order is not in effect and he is in the community. The supervision order includes a requirement that Mr Davidson reside at a residential facility or other residence as directed by the relevant authority. He is currently only permitted to leave that residential facility when accompanied by an authorised officer. 
3	My starting point is the right to liberty. As Chief Justice Gibbs said in Williams v The Queen:
“	The right to personal liberty is…"the most elementary and important of all common law rights". Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England "without sufficient cause" (Commentaries on the Laws of England (Oxford 1765), Bk.1, pp.120-121, 130-131). He warned:
"	Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities."
4	The right to liberty is enshrined in the law of Victoria in s21(1) of the Charter of Human Rights and Responsibilities Act 2006:
“Every person has the right to liberty and security.”
5	The regime for the imposition of supervision orders under the Act must be interpreted and applied in this context. 
6	Under s14(1) of the Act, a Court may make a supervision order if it is satisfied that an offender “poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a supervision order is not made and the offender is in the community”. Similarly, under s106 of the Act, on a review of a supervision order, the Court must confirm a supervision order in respect of an eligible offender if it is satisfied that the offender “still poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a supervision order is not made and the offender is in the community.” 
7	The concept of “unacceptable risk” in ss14 and 106 is interpreted so as to “limit the enjoyment of [the right to liberty] only to the extent that is reasonably necessary to give effect to” the Act’s legislative purpose. The Court’s jurisdiction to grant or renew a supervision order arises only where a risk of the commission of a serious sex offence or serious violence offence is “unacceptable”, having regard to:
(a)	the importance of the common law right to liberty;
(b)	the nature of the risk of harm; and
(c)	the magnitude of that risk. 
8	Self-evidently, not all risks are unacceptable. It would be both an impermissible erosion of the right to liberty, and a reversal of the onus of proof, if a supervision order were approached on the basis that an offender ought invariably be detained unless and until it could be shown that all risk of commission of a serious sex offence or serious violence offence had been ameliorated. When considering whether a risk is unacceptable, the Court must weigh the “conceptual value of individual liberty and other human rights” in the balance against the risk of harm to the community. 
9	So, too, in considering the conditions of a supervision order, the Court is required to consider that any conditions imposed, other than the core conditions:
 “a) constitute the minimum interference with the offender’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions; and
b) are reasonably related to the gravity of the risk of the offender re-offending.”
10	And finally, in the case  of a condition requiring an offender to reside at a residential facility – one of the most severe restrictions on liberty and freedom of movement available under the Act – the Court must:
“a) consider whether or not the offender should reside at a residential facility; and
b) be satisfied that no other suitable accommodation is available.”
11	The regime established by the Act reflects the principle that individual human rights such as the right to liberty may, in some circumstances, be required to give way to other important community values. The quintessential example of this is a convicted offender who is sentenced to be punished for his or her breach of the law by a term of imprisonment. However, deserved punishment is not the only reason a person’s right to liberty may be legitimately restricted. The legislature may also empower the Court to restrict a person’s liberty not as punishment for that person’s past actions, but for the purpose of protecting the community - ie: to reduce the risk that that person will engage in actions harmful to the community in the future. This is the regime for the imposition of supervision orders established by the Act. 
12	In the recent decision of Garlett, the High Court re-affirmed that state-based legislation establishing such regimes is constitutional. In doing so, the plurality emphasised the distinction between the punitive purpose of a sentence of imprisonment and the protective purpose of an order such as a supervision order. 
13	On one view (which was the view expressed by Edelman J in concurring with the decision of the plurality in Garlett, albeit for different reasons) to deprive a person of liberty for the purpose of protection of the community, whilst constitutionally permissible, is nevertheless placing the courts in the position of being “instruments of injustice”.
14	Justice Edelman explains:
“	…a fundamental premise of the criminal law is that individuals have free will. An offence is generally the result of a chosen act. One of the most serious responses of the criminal law is to punish that act, and the individual choice, with imprisonment. But for many years parliaments have also permitted people to be imprisoned, by "continuing detention orders", for choices that they have not yet made, and offences that they have not yet committed. The logic of such "punitive-preventive" orders – protective punishment – "applies without respect for whether the subject is a responsible agent or not".
15	In other words, an individual injustice is wrought on an offender for the sake of protection of the community. The offender is deprived of their liberty for something that they have not yet done and may never do. 
16	Having regard to the above principles, the sacrifice of an individual’s right to liberty for the sake of the community must, at the least, give rise to a concomitant moral obligation upon the community to provide sufficient resources for rehabilitation, treatment and the provision of appropriate accommodation, so as to ensure that the right to liberty of the person is not infringed any more than is reasonably necessary for the protection of the community. 
17	I turn then to consider the facts of this case. 
18	Mr Davidson is Aboriginal. He was adopted by non-Aboriginal parents as a baby. As there is a suppression order in force, I will not set out the full circumstances of his childhood, however Mr Davidson had a highly disadvantaged and fractured childhood. He has borderline/low average intellectual functioning and a very low processing speed. He meets the diagnostic criteria for an antisocial personality disorder. In addition to his psychological issues, he has an extensive history of physical health ailments and health complications, some of which are life threatening. 
19	Mr Davidson commenced offending when he was 13 years old. By the age of 16 he had progressed to sexual offending. The next 12 years of his life comprised long periods of imprisonment punctuated by release from prison which was almost immediately followed by serious re-offending and reincarceration. His last sexual offence - rape - was committed in 1995. He was convicted and sentenced for this offence (among a number of other serious offences) on 20 June 1996.
20	On 1 August 2012, a supervision order was imposed upon Mr Davidson  under the Serious Sex Offenders (Detention and Supervision) Act 2009, with effect from his release from prison on 16 November 2012. The supervision order included a requirement that Mr Davidson reside at a residential facility or a residence as otherwise directed by the Adult Parole Board and that he must not leave or be absent from his residence except in the company of a person approved by Corrections Victoria or otherwise directed by the Adult Parole Board (“residential facility condition”). Mr Davidson has been subject to a supervision order, including a residential facility condition, ever since. Aside from three short periods which I will shortly describe, he has throughout the duration of the supervision order either resided at Corella Place (a residential facility) or been in custody. He has only been permitted to leave Corella Place on planned, supervised outings. 
21	Since the imposition of the supervision order, Mr Davidson has been convicted of numerous offences, including some offences of violence. On six occasions, he has been charged and convicted of breaches of his supervision order. However, he has not been convicted of any sex offences since his conviction for rape in 1996. 
22	On 12 August 2019, Mr Davidson moved from Corella Place to Darebin Lodge, a private supported residential service. However, on 27 November 2019 a urine sample provided by him tested positive for methylamphetamine. He was remanded in custody on 30 November 2019 and ultimately convicted and sentenced to 80 days’ imprisonment. 
23	On 17 February 2020, Mr Davidson was released from prison directly back to Darebin Lodge. However, less than one week later, on 25 February 2020, he was returned to Corella Place due to concerns regarding his behaviour and the possibility he was using illicit substances.
24	On 20 May 2022, a detailed progress report was prepared by Professor James R.P. Ogloff. Professor Ogloff is a clinical and forensic psychologist and the dean of the School of Health Sciences at Swinburne University. Professor Ogloff demonstrated a good understanding of Mr Davidson’s complex presentation, having conducted six previous assessments of Mr Davidson over the past 15 years and also conducted an extensive review of the documents on Mr Davidson’s file. 
25	Professor Ogloff noted that on his most recent assessment, Mr Davidson had a sense of hope that he would be able to reside in the community whilst under supervision. He recorded that Mr Davidson had low intellectual functioning, a verbal learning disability and difficulties with executive functioning. He required ongoing assistance with planning and support, low frustration tolerance and was prone to becoming angry. 
26	Professor Ogloff performed structured assessments of Mr Davidson’s risk of re-offending utilising the following measures: the Static-99, Static-99R, Risk for Sexual Violence Protocol (RSVP) and HCR-20. He noted that it was difficult to assess Mr Davidson’s risks given his last sexual offending was committed when he was a young man and he was now 54 years old. He explained that the Static-99 and Static-99R were developed using a purely actuarial approach to identify the static or historical risk factors for sexual re-offending. The Static-99 consists of ten historical questions to which a binary yes/no answer may be provided. It does not take into account changes to risk which occur over time and permits no consideration of any therapeutic advances which may have occurred. The Static-99R is more responsive to the current age of the offender, but otherwise retains the limitations of the Static-99. The Static-99R has not been shown to have predictive accuracy that is better than chance with respect to indigenous offenders. Mr Davidson’s risk level on the Static-99 remained unchanged from the time when he was incarcerated in 1997, despite having commissioned no further sex offences in that time. On the Static-99R, he also remained at a level of “well above average risk”. 
27	The RSVP is a structured professional judgment measure. Rather than a set of ten questions to which a binary yes/no answer must be provided, it guides the clinician through five categories of factors relevant to risk of sexual re-offending: sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Each of these categories of risk are considered from the perspective of past, present and future. 
28	Professor Ogloff conducted a comprehensive review of each of these factors in his report. He noted (among other things) that Mr Davidson had not had any incidents of inappropriate sexual behaviour or comments since he had been on a supervision order. He noted that Mr Davidson did not demonstrate sexual deviance.  He noted that Mr Davidson had been able to abstain from alcohol but had taken synthetic cannabis on a few occasions and had engaged in substance abuse when at Darebin Lodge. He noted that Mr Davidson’s inappropriate and aggressive behaviour with co-residents and staff had greatly diminished and appeared to be under control. He stated that “The risk still exists, however, that without supervision, he might deteriorate and end up abusing alcohol and drugs again, which would increase his risk of sexual offending”. 
29	He concluded that Mr Davidson currently posted a moderate level of sexual reoffending, “largely as a result of substance abuse”. 
30	The HCR-20 is, like the RSVP, a structured professional judgment measure. However, it focuses upon the risk of non-sexual violence and violent offending. Using the HCR-20, Professor Ogloff concluded that Mr Davidson was also at a moderate risk of engaging in non-sexual violence. 
31	He concluded that Mr Davidson:
“should continue to be considered for a move to the community, in a supportive and contained environment such as Darebin Lodge. He has shown considerable improvement and has demonstrated a much better capacity to manage his frustration and not to threaten staff members. Should planning proceed for a move to supported accommodation in the community, he would benefit from the supervision which will continue for many more years.”
32	It was apparent from Professor Ogloff’s report that he considered that a particular risk factor for Mr Davidson engaging in sexual offending was substance abuse. He identified “a significant substance misuse history which has contributed to his past offending” and the increased risk of sexual offending by Mr Davidson if he used prohibited substances or returned to alcohol misuse in the future. For example, at paragraph 135, he stated:
“As noted in my previous assessments, as confirmed by his behaviour over the past three years, particularly whilst at Darebin Lodge [emphasis added], Mr. [Davidson] has not overcome the challenges he faces abstaining from substance misuse. As such, he requires further, ongoing and intensive assistance to understand and manage his substance misuse proclivities going forward.” 
33	The need for Mr Davidson to be given greater assistance and support during transition was also emphasised by Professor Ogloff:
 “For Mr. [Davidson], the gains have been relatively slow, and he has shown learning from concrete experiences, such as his time at Darebin Lodge. He would require a greater degree of assistance and support during and following the transition [emphasis added]. It is difficult for him, a man with limited cognitive capacity who has been almost continuously detained for more than 20 years, to be able to adapt to a new environment without considerable support. The recent National 360 assessment (7/07/2020) shows the level of supports that Mr. [Davidson] requires – in addition to offence specific and alcohol and other drugs support.”
34	On 6 September 2022, Mr Davidson was again moved from Corella Place to Darebin Lodge. 
35	Notwithstanding the concerns expressed by Professor Ogloff concerning the particular risks posed to Mr Davidson’s therapeutic advancement by abuse of illicit drugs and by transition, Mr Davidson was provided only a telephone bridging support appointment by a drug and alcohol service upon his move the Darebin Place. On 1 September 2022 he had been assessed and referred for Complex Counselling and Care and Recovery Coordination. This resulted in him being referred to Caraniche High Risk Offender Alcohol and Drug Service (HiROADS) on 7 September 2022 (ie: the day after he moved to Darebin Place). However, his first appointment with this service was not until 14 October 2022. Further, the supports recommended by the National 360 assessment referred to by Professor Ogloff were not accepted by the NDIS and so not provided to him. 
36	As explained by a member of the Post Sentence Branch of Corrections Victoria in evidence given at the hearing of this review:
One of the reasons that Mr [Davidson]…didn't have more than one bridging support appointment was that prior to that time…there was no substance use concerns detected. The reasons for that initial referral for drug and alcohol treatment was to support Mr [Davidson]'s transition to Darebin Lodge, but as you will see from, um, the documents tendered, Mr [Davidson] hadn't produced, um, any positive drug tests for a number of years and there weren't considered to be any, um, concerns that he was using drugs at that time.
37	It is very difficult to reconcile this evidence with the clear opinion of Dr Ogloff given only months earlier about the dual risks to Mr Davidson of transition and substance abuse. 
38	An alternative explanation for the failure to provide Mr Davidson more support upon his transition to Darebin Lodge was provided subsequently:
I suppose the difficulty there…does come from… the shortage of clinicians being available.”
39	As noted by Professor Ogloff in giving oral evidence on the review, the lack of support to Mr Davidson as he transitioned to Darebin Lodge, in the context of his past failed transition to Darebin Lodge and the clear opinions expressed in Professor Ogloff’s report, was disappointing. 
40	On 11 September 2022, Mr Davidson was informed that his sister, who was an important support in his life, had died. The funeral for his sister was held on 30 September 2022. On 8 October 2022, a sample of Mr Davidson’s urine tested positive to methylamphetamine. When questioned, Mr Davidson very readily admitted using methylamphetamine on 6 October 2022, to soothe the grief he experienced at the loss of his sister. 
41	As a result of his drug use, Mr Davidson was returned to Corella Place on 12 October 2022 (after a short period of imprisonment). Darebin Lodge, which is run by a private organisation, has indicated that it is no longer willing to accept Mr Davidson as a resident. At the time of the hearing, no alternative appropriate accommodation for Mr Davidson could be identified, other than remaining at the residential facility, Corella Place. 
42	On this review, the Secretary sought an order confirming the existing supervision order, including the residential facility condition. Mr Davidson did not oppose this order. 
43	Under s106(1) of the Act, I must revoke the supervision order unless I am satisfied that Mr Davidson will pose an unacceptable risk of committing a serious sex offence or a serious violence offence or both if the supervision order is not confirmed and he is in the community. The Court must be satisfied of unacceptable risk to a high degree of probability and on the basis of acceptable, cogent evidence.  
44	I accept Professor Ogloff’s conclusion, based on his application of the RSVP and the HCR-20, that Mr Davidson posed a moderate risk of sexual offending and a moderate risk of violent offending. The RSVP and HCR-20 provide a more individualised assessment of risk than the Static-R and Static-99R. They enable the consideration of dynamic factors, including therapeutic advances, applicable to an offender. As these instruments rely upon structured professional judgment, their results are necessarily subject to the skills of the clinician and their knowledge of the individual circumstances of the offender. However, Professor Ogloff was well-qualified and placed to make such judgments in respect of Mr Davidson. 
45	I also accept Professor Ogloff’s opinion that if Mr Davidson’s complex psychological issues and substance and alcohol abuse issues and need for intensive community supports are not met, there is a real danger that he will decompensate, abuse illicit substances or alcohol and commit a serious sex offence or serious violence offence. 
46	Even though Mr Davidson current risk of committing a sexual or violent offence is moderate, the gravity of any sexual offence, given his lengthy history of serious sexual offending as a young man, is high.  
47	In all the circumstances, I find that Professor Ogloff’s report, considered in conjunction with Mr Davidson’s long history of offending, provides acceptable, cogent evidence to a high degree of probability that Mr Davidson will pose an unacceptable risk of committing a serious sex offence or serious violence offence if the supervision order is not confirmed and he is in the community. The supervision order must be confirmed. 
48	The supervision order contains additional conditions which, in very brief terms, require him to attend treatment or rehabilitation; to abstain from consuming alcohol; not to use or possess illicit drugs; to submit to breath testing, urinalysis or other test procedures; to avoid contact with his victims or their family; to comply with the Post Sentence Authority’s directions in relation to monitoring (including electronic monitoring); and not to contravene the Control of Weapons Act 1990. I accept that each of these conditions are appropriately directed towards reducing the particular risks posed by Mr Davidson. I am satisfied that these additional conditions are the minimum interference with Mr Davidson’s liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions and are reasonably related to the gravity of the risk of him re-offending. I confirm each of these conditions. 
49	In relation to the residential facility condition specifically, if Mr Davidson is to successfully transition back to the community, I find that he must be given a gradual transition in the context of careful planning and clear support, including:
(a)	awareness of the facility in which he resides of the risks to Mr Davidson of substance abuse, changes in routine and challenging life events;
(b)	appropriate professional support and counselling to assist in managing Mr Davidson’s psychological issues, including the risks of substance abuse, and physical health issues; 
(c)	adequate monitoring of Mr Davidson to detect any transgressions, particularly illicit drug use;
(d)	a positive social environment, including positive role models; and
(e)	the opportunity to visit the community and move towards more independence and deinstitutionalisation.  
50	An unsupported private or public rental does not meet these criteria. Darebin Place is no longer an option as, after his last failed placement, it will no longer accept him as a resident. No other appropriate accommodation could be identified by the witnesses who gave evidence on the review.
51	In the circumstances, I am satisfied that there is currently no appropriate accommodation suitable for Mr Davidson, other than Corella Place. 
52	Given the challenges of Mr Davidson’s complex psychological issues; his institutionalisation for almost all his adult life; his long history of violent sex offences; and his ongoing record of other offences, it would not, on any view, be appropriate for Mr Davidson to be released from Corella Place without any other appropriate accommodation in place. In the circumstances, the residential facility condition must be confirmed. I am compelled to make this finding, notwithstanding the fact that in his report Professor Ogloff supported Mr Davidson being considered for a move to the community in a supported and contained environment. 
53	Regrettably, it remains to be seen whether any other suitable accommodation for Mr Davidson will be able to be identified in the future. 
54	If no alternative accommodation can be found, it seems that the only option, foreshadowed in the oral evidence of Professor Ogloff, is that Mr Davidson continue to be required to reside at Corella Place until he either dies or the natural process of aging and his increasing physical infirmity render him too frail to be of risk to anyone, anymore.
55	I return to the matters outlined in the opening of these reasons. Mr Davidson is being deprived of his right to liberty not as punishment for what he has done, but to protect the community from the moderate risk of what he might do, if not forced to reside at Corella Place. 
56	It is possible that given his complex issues, Mr Davidson was never going to successfully transition to Darebin Place. On the other hand, it is also possible that his most recent failed attempt to transition to the community was contributed to by the failure to put in place the appropriate, recommended, supports for this transition. Having regard to his human right to liberty, Mr Davidson is entitled to expect that every effort will now be put into finding some viable alternative for his accommodation and into arranging a well-supported, gradual and planned transition to greater liberty.
Order restricting publication of Mr Davidson’s identity
57	Mr Davidson sought an order under s279 of the Act that any information which might enable him or his location not be published. Such an order may be made where the Court is satisfied it is in the public interest to do so. 
58	In the present case, Professor Ogloff’s evidence was unequivocal that the shame to Mr Davidson of being identified, including his fear that he would be incorrectly assumed to be a paedophile, would undermine his treatment and behaviour going forward; and thereby increase the risk of him offending. This is not in the public interest.
59	Notwithstanding this, the Secretary opposed the order on the grounds of Mr Davidson’s repeated breaches of his supervision order. I note that an offender’s compliance with a supervision order is a mandatory consideration on an application under s279. However, it does not follow from this that a suppression order should be refused whenever there has been multiple breaches of a supervision order. Counsel for the Applicant was unable to provide any particular reason why it followed from Mr Davidson’s repeated breaches of the supervision order that it was not in the public interest to make the suppression order sought. Indeed, it follows from Professor Ogloff’s evidence that disclosure of Mr Davidson’s identity would make further breaches of the supervision order more likely, not less. This is not in the public interest.  
60	I am satisfied that it is in the public interest to grant an order under s279 of the Act, however I will exclude from the operation of this order the publication of these reasons.