Applicant v Respondent

2 It is against this background that Mr Fletcher was, on 4 March 1998, sentenced by me to a total period of 10 years' imprisonment. I directed that he serve 8 years before becoming eligible for parole.

3 In the event, Mr Fletcher served the full period of 10 years which, when pre-sentence detention was taken into account, expired on 12 June 2006. On 7 March that year, three months before his eventual release, the Secretary to the Department of Justice ("the Secretary") applied pursuant to s.5 of the Serious Sex Offenders Monitoring Act 2005 for an extended supervision order. The application was heard by Gillard J on 29 May 2006. In his reasons for judgment, his Honour noted that Mr Fletcher "agreed that an extended supervision order should be made against him for a limited period".[1] His Honour remarked that, on the material he had seen, "the concession made was appropriate in all the circumstances".[2]

4 The purpose and outline of the Serious Sex Offenders Monitoring Act is described in s.1 of that enactment. It does not authorise preventative detention, but it does enable the relevant authorities to place restrictions on the freedoms usually enjoyed by those who have never been sentenced and indeed over and above those who have completed a sentence. It provides that the main purpose of the Act "is to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who are a serious danger to the community to be subject to ongoing supervision while in the community".[3] Consistently with this, the Act defines the class of sex offender to whom it applies;[4] empowers either the Supreme Court or the County Court to make, on the application of the Secretary, an extended supervision order of up to 15 years in respect of an eligible offender; empowers the Adult Parole Board ("the Board") to give instructions or directions in respect of an extended supervision order and to supervise offenders who are subject to such an order; and provides for their suspension, review and renewal.

5 It is not in dispute that the respondent is an "eligible offender". This follows from s.4 of the Act, which provides that such a person is one on whom a court has at any time imposed a custodial sentence in respect of an offence listed in the schedule to the Act and who remains in custody at the time at which an application for an extended supervision order is made. The sexual offences to which Mr Fletcher pleaded guilty are covered by items 1, 8 and 29 of that schedule.

6 It was in these circumstances that the application by the Secretary was made pursuant to s.5 of the Act. The effect was to enliven s.11, which so far as is presently relevant, provides that a court may only make an extended supervision order if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence (that is, an offence listed in the schedule to the Act) if released in the community on completion of the relevant custodial sentence.

7 In those circumstances, including the circumstance that the Secretary's application was not opposed, Gillard J was satisfied to the requisite "high degree of probability" that Mr Fletcher was likely to commit a relevant offence if released without being made subject to an order of the kind for which the Secretary was then applying. An extended supervision order was made accordingly. It was to come into effect on 12 June 2006 and remain in force for five years. In giving judgment, Gillard J noted that:

Section 11(1) [of the Act] authorises the Court to make the extended supervision order if the Court is satisfied "to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on the completion of the service of any custodial sentence".[5]

8 As required by s.15(1) of the Act, eight conditions were "attached" to it. Their purpose was, in the words of the statute, "to ensure that the community is adequately protected by monitoring the offender" and "to promote the rehabilitation, and the care and treatment, of the offender".[6] Included among them were conditions that Mr Fletcher attend at any place as directed by the Secretary or the Board for the purpose of supervision, assessment or monitoring; that he report to, and receive visits from, the Secretary or any person nominated by the Secretary; and that he notify the Secretary of any change of name or employment. Other conditions were that Mr Fletcher not change his address without the prior written consent of the Secretary, and that he obey all lawful instructions and directions of both the Secretary and the Adult Parole Board.

9 A court may only make an extended supervision order if it is satisfied to the requisite degree that the offender is likely to commit a relevant offence if so released. Otherwise, so far at least as the Serious Sex Offenders Monitoring Act is concerned, his or her release after any period of parole has expired must be unconditional. Despite this, Mr Fletcher was not released into the community when he completed his prison term on 12 June 2006. He was, as Gillard J found, unlawfully detained.

10 I state the facts in this way only to give emphasis to the unusual situation in which, to his surprise, Mr Fletcher found himself on 12 June 2006. I do not attribute blame for this, or suggest for a moment that the community does not have a legitimate interest in being protected from dangerous sex offenders. Parliament, not this Court, is the judge of that, and Parliament has spoken. But when the legislation was first enacted, it did not empower the Board to do what the Board did (albeit that the Board believed - mistakenly - that it was acting in the public interest and within its power). The Board on 7 June 2006 gave an instruction or direction that Mr Fletcher reside at the Extended Supervision Order Temporary Accommodation Unit in Ararat. As Gillard J subsequently found when Mr Fletcher applied for an order for habeas corpus, "[t]his, in fact, was a security unit forming part of the Ararat Prison."[7]

11 The legislation has since been amended to provide that the Board may direct that a relevant offender reside at premises that are within the perimeter of a prison (whether within or outside any walls erected on prison land) but do not form part of the prison.[8] An offender subject to and while obeying such a direction must be taken to have been released in the community, and to be residing in the community.[9] But these amendments do not affect the issue which seems to me to be paramount in considering the present application for leave pursuant to s.23(3). I am prepared, at least for the purposes of this application, to accept that Mr Fletcher would not have consented to the making of the extended supervision order had he known that it would result in a direction from the Board that he be required to reside within the prison in which he was then incarcerated.[10] I am also prepared to accept (again, for the purposes of the present application) that, because he consented, he did not put before Gillard J all that might have been put in opposition to the making of the order.

12 If the application for leave pursuant to s.21(3) is granted, Mr Fletcher will be given an opportunity which, through no fault of his own (or, indeed, of anybody) was denied to him in May 2006. No-one should be restrained in the way Mr Fletcher was, and is being, restrained, without being given a fair opportunity to put to the court to which an application under s.5 has been made all relevant material and all relevant arguments in opposition to it.

13 Other submissions were put to me during the course of hearing the application for leave. It was submitted on behalf of Mr Fletcher that his health had deteriorated to such an extent that there is no longer a high degree of probability that he will commit a relevant offence. There is also, it was contended, a difference of expert opinion about Mr Fletcher's psychological and psychiatric symptoms; and that this difference, because it affected any assessment of the danger he posed, and because it had become sharper since the hearing before Gillard J in May 2006, should be considered by the Court on a review of Mr Fletcher's extended supervision order. Submissions to the contrary were made on behalf of the Secretary.

14 There was also an argument before me about the test to be applied in determining the outcome of an application for leave of this kind. In this context, an analogy was drawn with the test to be applied on an application for leave to appeal against sentence. It is not an analogy that attracts me. A person who is made subject to an extended supervision order is no longer a prisoner under sentence. A person in Mr Fletcher's position should in my opinion be given leave to apply for a review of such an order if the court is satisfied that new facts or circumstances, justifying such a review, have arisen since the order was made.

15 I regard the giving to Mr Fletcher of a direction, unlawful when made, that he reside within Ararat Prison, as a new fact and circumstance. Had it been known, when the original hearing before Gillard J took place in May 2006, that this direction was proposed, his Honour's attitude to the Secretary's application would have been different. So much can be said with confidence, because his Honour subsequently held that the direction was unlawful. And, for the reasons to which I have already referred, Mr Fletcher's attitude would also have been different.

16 I acknowledge that the giving of the direction was a new fact or circumstance partly because it was, when given, beyond power; since then, Parliament has amended the legislation, so that what was once unlawful is now within power. To that extent, the "new" fact or circumstance has been removed.

17 In my opinion, however, the point - that the direction to reside on land within the perimeter of Ararat Prison was a fact or circumstance which might have affected the outcome of the Secretary's application before Gillard J - remains good. Any judge, it seems to me, would be bound - when considering whether he or she was satisfied to the "high degree of probability" required by s.11(1) of the Act - by the reasoning of the High Court in Briginshaw v Briginshaw.[11] As Latham CJ pointed out in that case, the degree of satisfaction required when the issue is whether someone owes a small amount to someone else is different to that required when the question is whether someone should be punished by execution.[12] Rich J made the same point when he referred to the "common sense and worldly wisdom" which dictates that, in a matter as serious as (in those days) a charge of adultery, "the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion."[13] And the judgment of Dixon J in that case[14] is so well known as not to need quoting here.

18 The possibility that someone might be required to remain indefinitely under a regime dictated at many substantive points by officials, well-meaning as they might be, but with powers as wide as those conferred by the Serious Offences Monitoring Act on the Board (and, to a lesser extent, on the Secretary) - including the power to require residence within the perimeter of a prison after the offender has served the sentence fixed by law - is one that must only be entertained after very serious consideration of all the available and relevant evidence. In the circumstances then before him, Gillard J was unable to do that.

19 In these circumstances, I do not need to assess the issues relating to Mr Fletcher's mental and physical health. These will doubtless be explored on the review to which, in my opinion, Mr Fletcher is entitled. Given that that exploration will take place, I should refrain from expressing any opinion about them save to say that they do, I think, constitute in themselves a further reason for granting the application for leave.

20 For these reasons, I grant leave pursuant to s.21(3) of the Act to apply to the Court for it to undertake a review of Mr Fletcher's extended supervision order made by the Court on 29 May 2006. If it is necessary to do so, I hold that the application is successful. A review will be undertaken accordingly. It goes without saying that the outcome of that review must be solely in the hands of the Court constituted by the judge before whom it comes. Nothing said by me in the course of giving these reasons is intended to affect that outcome.

[1] The Secretary to the Department of Justice v Fletcher [2006] VSC 212 at [10].

[3] Serious Sex Offenders Monitoring Act 2005, s.1(1).

[5] Fletcher v The Secretary to the Department of Justice & anor. [2006] VSC 354 at [8]. Emphasis as in the judgment of Gillard J.

[6] Serious Sex Offenders Monitoring Act 2005, s.15(2).

[7] [2006] VSC 354 at [20].

[8] Serious Sex Offenders Monitoring Act 2005, s.16(3A).

[10] In this context, I rely on the affidavit of Richard Eric Oakley sworn 14 February 2008, paras 5 and 8.

[11] [1938] HCA 34; (1938) 60 CLR 336.