DPP v Sajid Ali [2020] VCC 748

4 On 28 February 2019 at a Special Hearing he was found by a second jury to have committed the offences of Armed Robbery, two charges of Rape and Robbery.[1] Those offences were committed against 2 female victims who were working as sex workers in the St Kilda area. The offences occurred in separate incidents in December 2017 and January 2018. Tendency evidence was led from a third woman who was also a sex worker.

5 Having been found to have committed the offences, I then declared Mr Ali liable to supervision.

6 Once declared liable to supervision, a Court must make a supervision order in respect of the person. That order may be a custodial order ("CSO") or a non-custodial order ("NCSO"). To inform the exercise of my discretion in that regard, and as required under the Act, I made orders requiring a report into Mr Ali's mental condition under s.41 and a certificate of available services under s.47.

7 The result of those enquiries is that Mr Ali is not eligible for disability services from the Department of Health and Human Services ("DHHS") or psychiatric services from Forensicare. His status as an unlawful non-citizen creates a further impediment to receiving services. The issue in this case therefore is what is the appropriate supervision order - a custodial supervision order which would commit him to prison, or conditional release on a non-custodial supervision order, the result of which would be his immediate transfer to immigration detention. The nominal term for any order would be 25 years.

8 Before I turn to those issues and the details of Mr Ali's offending, I will outline his personal history and the psychological material which formed the basis of his unfitness.

10 He was born in a small village in Pakistan. He is still in contact with his family who reside there. He also has a wife in Pakistan with whom he is in contact. He has no family in Australia.

11 As a result of the war extending from Afghanistan Mr Ali was unable to leave his local village to attend school. He did not learn to read or write. He worked in his uncle's bakery from the age of 12 to 17.

12 At age 17 Mr Ali suffered significant injuries as the result of a grenade explosion. Those injuries included loss of sight in his right eye and loss of his right arm caused when he picked up the grenade to throw it away. He says he still has shrapnel in his skull, shoulder and ribcage. He has an artificial eye. Mr Ali suffered psychological trauma after that incident.

13 At approximately 19 years Mr Ali migrated to Australia as a refugee. Family and friends funded his trip. He was motivated in part to obtain a prosthetic arm. He travelled via Malaysia and Indonesia and spent time in detention on Christmas Island before being released to Brisbane. He was granted a bridging visa.

14 He moved to Melbourne initially living in Footscray with acquaintances he had met from Pakistan. He rented a house with several others and worked in a carwash. He later moved to Shepparton, working as a fruit picker. In Australia he was fitted for a prosthetic arm.

15 Mr Ali began to drink alcohol once in Australia, gradually increasing his consumption over the ensuing years, and eventually turning to use and abuse of cannabis and some amphetamine use.

16 In 2016 he was seriously assaulted in Shepparton. He was hit on the head and to the face with a hammer. He suffered injuries including loss of front teeth and a broken finger on his left hand. He suffered psychological sequalae becoming seriously depressed, and his use of alcohol and drugs increased. He attempted suicide. Mr Ali became homeless and started living out of his car. This was the state of his life at the time of the offending.

17 The issue of Mr Ali's unfitness to stand trial was not contested.

18 Mr Ali's solicitors obtained a report from Ms Jane Lofthouse Clinical Neuropsychologist dated 1 May 2018. The Prosecution obtained a report from Dr Ann Davidson, Senior Clinical and Forensic Psychologist at Forensicare dated 26 September 2018. In summary they both found Mr Ali unfit on almost all criteria of s.6(1) of the Act.

19 Both Ms Lofthouse and Dr Davidson opined that Mr Ali is functioning at a very poor cognitive level, suggesting a moderate to severe intellectual impairment with notable deficits in abstract reasoning and executive functioning.

20 Neither could determine whether that cognitive impairment was a result of intellectual disability or acquired brain injury (ABI) or a combination of both and possibly exacerbated by substance use. ABI could have resulted from the grenade explosion and the Shepparton assault.

21 Both experts noted an overlay of psychological issues contributing to Mr Ali's poor functioning.

22 On the basis of their evidence the jury found Mr Ali unfit.

23 A second jury then found Mr Ali to have committed the following offences.

24 The first offence occurred around 2.30am on 24 December 2017. Mr Ali met Ms Chelsea Mauldon[3] who was engaged as a sex worker on Inkerman Street in St Kilda. He negotiated that he would pay her $100 for oral and vaginal sex. They then drove in his car to Albert Park, near sports facilities.

25 Mr Ali gave Ms Mauldon $70. She then performed oral sex on him, after which he engaged in vaginal sex. Mr Ali was extremely rough, and said 'You need a punch. You're bad girls, you need a punch'. Mr Ali ejaculated and Ms Mauldon got up and put her clothes back on. Mr Ali continued to say 'You need a punch' and Ms Mauldon replied 'If you punch people you go to gaol'. Mr Ali responded 'I'm not scared of gaol. I'm not finished'. Ms Mauldon said 'Yes you are, show me the condom', but he refused to do so.

26 Ms Mauldon was looking away from Mr Ali briefly and when she turned back, he was standing approximately 1.5 metres away from her and holding a 20cm knife in his hand. He began thrusting it towards her, smiling and saying 'Bad girls'. He demanded her handbag and in fear she gave it to him (Charge 4 - Armed robbery).

27 Mr Ali then got back into his car, locking the door. Ms Mauldon managed to reach through the open window and opened the car door. She asked for her bag and purse. Mr Ali went through the purse and retrieved the $70, saying 'I get my money back'. He then threw the bag back to Ms Mauldon, who walked back through the park towards Grey St.

28 Ms Mauldon noted Mr Ali's vehicle registration on her mobile phone immediately. She reported the incident to staff at the Resourcing Health and Education in the Sex Industry organisation.

Incident 2 -Charges 5 - 7 Rape (oral) Rape (vaginal) Robbery

29 The next offences occurred about a week later on 6 January 2018. Ms Natasha Pierce[4] was working as a sex worker. She was standing talking with others on Grey Street, St Kilda in the early hours of the morning.

30 Mr Ali drove up in his car, and negotiated with her, agreeing to pay for a '$100 job' meaning oral and vaginal sex. She got into the car and directed him to drive to Albert Park, near the rowing club facilities. He drove further on from where she had requested. He stopped and told Ms Pierce to get out of the car.

31 Ms Pierce asked to be paid and Mr Ali asked 'how much $50?' indicating an agreement that Ms Pierce would only perform oral sex on him.

32 Ms Pierce put a condom on Mr Ali's penis, but he immediately pulled it off. She told him that she was 'not doing it without a condom'. Mr Ali then tried to push his penis towards her face. Ms Pierce said 'No, take your money back'. Mr Ali said 'Do you want me to punch you?' and was pushing Ms Pierce. She backed away from him into a gate next to an oval. In fear of Mr Ali, she complied with his demand and performed oral sex on him without a condom (Charge 5 - Rape).

33 Within a couple of minutes, Mr Ali pushed Ms Pierce to the ground and inserted his penis into her vagina without a condom (Charge 6 - Rape). Ms Pierce was upset and told Mr Ali that he was scaring her. He ejaculated inside her vagina.

34 Following this, Mr Ali kept pushing Ms Pierce and said 'I've got a gun, I'll shoot you'. He then asked 'How much money have you got on you?' and demanded his money back. Ms Pierce gave Mr Ali a $10 note (Charge 7 - Robbery). Mr Ali turned away to urinate and Ms Pierce used this opportunity to run.

35 She called triple-zero immediately. Police attended soon after and she was taken to the Royal Women's Hospital where DNA samples were taken. They later confirmed Mr Ali's identity.

36 Mr Ali engaged with another sex worker, Ms Lily Gill[5] about a week later. Her evidence was led as evidence of tendency.

37 At about 2.25 am on 13 January 2018, Ms Gill was standing on Inkerman Street St Kilda engaged as a sex worker. Mr Ali pulled up in his car and invited Ms Gill to get in the passenger seat. They drove to Albert Park. In the car, Ms Gill told Mr Ali the prices for the services she offered.

38 After arriving at Albert Park and getting out of the car, Ms Gill saw Mr Ali's prosthetic arm, and recalled having engaged with him one year earlier. On that occasion he had been aggressive and refused to pay her.

39 On the occasion in January 2018 Mr Ali engaged in both oral and vaginal sex with Ms Gill. He then asked her for $100 and she said she had no money, except $25 which belonged to a friend. Mr Ali asked her to give him $20 and because she was scared of him, she did so.

40 Mr Ali drove Ms Gill back to St Kilda, where she immediately reported the incident to police. Mr Ali was arrested shortly thereafter.

41 Mr Ali participated in a recorded interview on 13 January 2018 wherein he denied having sex with either Ms Pierce or Ms Mauldon, and denied stealing anything from them, claiming they were lying. Mr Ali stated he had been drinking and was unable to remember the events, also telling police that he had previously been assaulted and was taking prescribed medication that affected him badly.

43 These are serious offences. The victims were vulnerable women, exposed and alone. They were entitled to their personal health and personal safety. The behaviour of Mr Ali towards them must have been frightening and I have no doubt it left them feeling distressed, anxious and psychologically affected. I have received a Victim Impact Statement from Ms Pierce which outlines the immediate and lasting effect of this offending on her.

44 Upon the jury finding Mr Ali to have committed the offences, I declared him liable to supervision pursuant to s.18(4)(a) of the Act.

45 Once a person is declared liable to supervision, s.26 of the Act directs that the Court must make a supervision order. That order may be a custodial supervision order or a non-custodial supervision order. If a CSO is imposed, it may commit the person to custody either 'in an appropriate place' or in a prison. A NCSO provides for release of the person 'on conditions decided by the court and specified in the order'.

46 According to s.26(3) the court cannot make an order (a) committing a person to custody in an appropriate place, or (b) providing for them to receive services in an appropriate place or from a disability service provider or the Secretary to the DHHS unless it has received a certificate under s.47 stating that the facilities or services necessary for the order are available.

47 A certificate of available services is not a pre-requisite where a Court is not proposing an order with provision of services under s.26(3)(b), whether a CSO or NCSO.[6]

48 'Appropriate place' is defined in s.3 of the Act. It 'means - a designated mental health service' as defined under the Mental Health Act 2014; 'or a residential treatment facility' as defined under the Disability Act 2006; 'or a residential institution' as defined under the Disability Act 2006. Those are services proclaimed under the relevant legislation.

49 The provision of services from a disability service provider or the DHHS under the Crimes (Mental Impairment and Unfitness to be Tried) Act draws on and is limited by the definition of disability in the Disability Act 2006. Similarly, provision of forensic psychiatric accommodation or treatment depends on the person coming within designated mental health criteria.

50 In order to assist me determine the appropriate order for Mr Ali the matter was adjourned so that further assessment could be made and a certificate of available services pursuant to s.47 could be provided. I remanded Mr Ali in prison.

51 In June 2019 the DHHS advised that it was not possible to determine whether Mr Ali has a disability as defined by the Disability Act 2006 as

a. It could not be determined if Mr Ali's cognitive impairment was the result of intellectual disability or ABI.

b. The reports [of Ms Lofthouse and Dr Davidson] did not evidence the presence of an intellectual disability prior to age 18.

c. A full and comprehensive range of neuropsychological testing had not been completed.

d. Limited corroborative information had been provided regarding Mr Ali's functioning, history and adaptive deficits.

52 Time was sought by the DHHS for suitably qualified psychologists to undertake further assessment and 'fully explore' whether disability services were available.

53 Forensic Psychologist and Clinical Neuropsychologist, Dr Peter Ashkar conducted an assessment of Mr Ali on 26 July 2019. He concluded that although Mr Ali was performing at the low end of normal limits in all areas of intellectual and cognitive functioning, 'overall there was little in his behaviour to raise concerns about his cognition.' He stated there was 'no qualitative or quantitative evidence on formal testing to suggest he had an intellectual disability or ABI.'

54 Forensic Psychologist Mr Peter Stanislawski also assessed Mr Ali on 26 July 2019. He determined that Mr Ali would not satisfy the criteria for deficits in adaptive functioning. He concluded that Mr Ali did not meet cognitive, adaptive and developmental delay criteria stipulated by the Disability Act 2006 in regard to intellectual disability.

55 In a letter dated 3 September 2019 Ms Angela Robinson, Manager, Divisional Disability Client Services, DHHS confirmed those reports and stated that Mr Ali is not eligible for disability supports from the Department of Health and Human Services. The certificate of Available Services from DHHS dated 19 September 2019 reflects those findings.

56 The matter returned to court on 20 September 2019.

57 Mr Terry on Mr Ali's behalf did not challenge the findings of Dr Ashkar or Mr Stanislawski. In the face of the Certificate of available services he submitted that placing Mr Ali on a CSO would necessarily result in placing him in prison. He submitted Mr Ali would be unlikely to receive treatment due to his complex presentation, and would effectively be warehoused in the prison system. He submitted that the appropriate order was a NCSO.

58 He confirmed that Mr Ali's bridging visa had been cancelled. I understand that to be as a result of the findings that he has committed the index offences. The parties agreed that if Mr Ali was to be released from imprisonment he would be transferred immediately to immigration detention. Although Mr Terry originally submitted I should order/request the Department of Immigration and Citizenship to provide a report as to what if any services may be available in immigration detention, ultimately that submission was not pursued.

59 While conceding that risk could be informed on the basis of the offending, Mr Terry submitted that I should obtain a Forensicare report outlining Mr Ali's risk before ultimately determining the matter. Mr Terry submitted that ideally such report would also provide recommendations for treatment options.

60 I adjourned the matter. A request under s.41 was directed to Forensicare and specifically seeking a risk assessment.

61 I received a report dated 27 November 2019 from Dr Fiona Toal, Consultant Forensic Psychiatrist with Forensicare. She confirmed that there was no evidence of mood, anxiety or psychotic disorder, nor any ongoing psychiatric issues. She noted a history of psychological issues including self-harm as a result of significant trauma.

62 She stated "With respect to risk of current or future sexual violence, I respectfully would advise the court that based on the information available I am not able to comment in a quantifiable way on these risks."

63 At a mention hearing in December 2019 Dr Toal's report was discussed, as well as the prospect of requesting further information. Mr McHenry for the Prosecution submitted and I accept that it was not appropriate for the Prosecution to seek to identify services and to that end, he would rely on the reports already obtained from Forensicare and DHHS in submitting a CSO was appropriate. Mr McHenry did not object to a further request regarding risk assessment, though submitted I could estimate risk based on the material already to hand.

64 Mr Terry maintained his submission that a NCSO was the appropriate order. In the alternative he submitted I could revoke the declaration that Mr Ali be subject to supervision and release him unconditionally. He further submitted that risk is only one factor I must consider, and that obtaining a further report may not shed any more light on issues I must consider under s.40(1). Nonetheless he submitted further enquiries should be made.

65 I requested further information from both DHHS and Forensicare. Specifically, DHHS were asked to clarify and or expand on the Certificate of Available Services dated 19 September 2019, in particular to advise whether there are any facilities to accommodate or services to treat Mr Ali under a CSO or NCSO, including if Mr Ali were housed in immigration detention on a NCSO. Forensicare were asked to advise whether there are any services available via a CSO or NCSO, and additionally to consider Mr Ali's risk of reoffending or to outline any impediments to determining that risk.

66 I received a letter dated 19 February 2020 from Ms Robinson of DHHS. The Department affirmed its conclusion that "Mr Ali does not have a disability as defined and is not eligible to access forensic disability supports provided by the Department including facility based accommodation, treatment or supports."

67 In addition, Ms Robinson confirmed that "Mr Ali's status as an unlawful non-citizen would preclude him from accessing the Department's forensic disability supports and funding from the National Disability Insurance Scheme even if he had been assessed as having a disability."

68 Further she stated "There are no facilities known to the Department where the accused could be accommodated in the community on either a custodial supervision order or non-custodial supervision order." Finally, "There are no services known to the Department which could be provided to treat and support Mr Ali on a non-custodial supervision order including if Mr Ali were housed in immigration detention on a non-custodial supervision order."

69 A certificate of available services from DHHS dated 20 February 2020 affirmed those conclusions.

70 I received a report from Consultant Psychiatrist Dr Anthony Cidoni of Forensicare dated 28 February 2020. Dr Cidoni stated that in his opinion "Mr Ali has suffered from an acquired brain injury with significant cognitive deficits, well documented by Dr Davidson and Ms Lofthouse. There are significant difficulties with testing due to educational and language difficulties and it is unclear whether there are any premorbid intellectual difference deficits." He stated "In the absence of severe mental illness, Forensicare is unable to supervise Mr Ali." He did not elaborate on Dr Toal's comments regarding risk.

71 A certificate of available services from Forensicare also confirmed those findings.

72 I discussed those matters with Counsel on 5 March 2020 and foreshadowed bringing witnesses to court to explore those findings, however ultimately I brought the parties back to a mention on 23 April 2020 to raise my concerns about that proposed path. Specifically, it was apparent that the positions of both DHHS and Forensicare had been made clear with regard to ineligibility. Similarly there was no availability for services via NDIS, and Mr Ali's status as an unlawful non-citizen was preventative. In addition in my view any assessment of risk by a mental health expert, if one could be made, would not alter the unavailability of services.

73 Mr Terry repeated his submission that if subject to a CSO Mr Ali would remain in prison on an Order with a nominal term of 25 years, and in circumstances where he is unlikely to receive any treatment. In light of the legislative scheme, which is non punitive, he submitted I should not commit Mr Ali to custody in a prison but should make a NCSO.

74 Mr McHenry accepted that a NCSO is open, though maintained the Prosecution submission that a CSO is appropriate. He submitted that given my previous indications, I should continue down the path of having Dr. Toal give viva voce evidence on risk, and on the interplay between Mr Ali's cognitive difficulties and his offending behaviour.

75 Counsel agreed that the fact of Mr Ali's status as an unlawful non-citizen, and that he would be transferred directly to immigration detention on release from imprisonment are matters I can consider. Mr McHenry confirmed that Border Force are aware of Mr Ali's case and are awaiting the outcome. What happens after being moved to immigration detention is somewhat speculative. Mr Ali would be likely to either be deported, or he may apply for a bridging visa. He has indicated a desire to return to Pakistan, however it is possible that he could apply to remain in Australia. Ultimately that would be a matter for the executive and does not affect my decision.

76 Mc McHenry's secondary position if I make a NCSO, was that I could impose a condition requiring Mr Ali to notify the Court, the Secretary to the Department of Justice and Regulations ("DOJR"), and the Director of Public Prosecutions of any intention to apply for a bridging VISA or change in his VISA status prior to such application being made.

77 Mr McHenry also submitted that if I were to make a NCSO, the appropriate supervisor of that Order is the Secretary to the Department of Justice and Regulation ("DOJR"), rather than the DPP.[7]

78 Mr McHenry also made application that Mr Ali be registered under the Sex Offender Registration Act 2004. No submissions have been made in opposition of that application and I will make that order in due course.

79 Turning to the legislative requirements and principles, including principles drawn from relevant case law.

80 In order to make a determination as to the appropriate supervision order under s.26, I must consider the principles in s.39 and 40 of the Act.

81 Section 39 provides (1) in deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person's freedom and personal autonomy must be kept to the minimum consistent with the safety of the community.

82 Section 40 compels me to have regard to the following factors in deciding whether to make an order -

a. The nature of the person's mental impairment or other condition or disability; and

b. The relationship between the impairment, condition or disability and the offending conduct; and

c. Whether the person is, or would if released be likely to endanger themselves or another person or persons because of his mental impairment; and

d. The need to protect people from such danger; and

e. Whether there are adequate resources available for the treatment and support of the person in the community; and

f. Any other matters the court thinks relevant.

83 Pursuant to s.40(2) I am also required to consider the contents of a report from a medical practitioner or psychologist who has personally examined Mr Ali.

84 Those sections must be interpreted with the purpose of the legislation in mind. As confirmed by the Court of Appeal in NOM v DPP[8], the legislation is therapeutic not punitive. An order which restricts or deprives a person of their liberty should only be imposed if absolutely necessary. The extent of interference with a person's freedom or personal autonomy must be only that which is consistent with the safety of the community.[9]

85 Consideration of the factors in s.40(1) requires an evaluation of the person's mental condition and progress and assessment of risk against discrete but interrelated considerations of the need to protect the community from harm. These assessments call for value judgements.[10]

86 The discretion to impose a NCSO created in s.26(2)(b) is a broad one. The court is empowered to release the person on conditions decided by the Court and specified in the order. The conditions must be consistent with furthering the statutory purposes of the order. They must be consistent with the principle in s.39.[11]

87 The consideration of possible conditions and the appropriate order must also take into account s.26(4) which requires the court not to make a supervision order committing a person to custody in a prison 'unless it is satisfied that there is no practicable alternative in the circumstances.'

88 The approach required by ss.26(4) and s.39(1) means that if s.26 is capable of a construction which allows a less restrictive impact on freedom and personal autonomy, but which is still consistent with the safety of the community, then that option should be preferred.[12]

89 The existence of s.47(3) provides for a scenario where no facilities or services are available. Adopting an interpretation of the Act which least restricts the freedom of a person under supervision, consistent with the safety of the community, means an NCSO is available independently of any identified services.[13]

90 I have given consideration to the factors outlined in s.40(1). Mr Ali is a person with serious cognitive deficits as outlined in the reports of Ms Lofthouse, Dr Davidson, Dr Toal and Dr Cidoni. It is not possible to identify precisely the source or sources of those deficits. It is likely the original origin now has overlay of a number of co-morbidities. The intellectual deficits affect his executive function and result in a lack of impulse control and dysregulated behaviour. His impairment is likely to have been a significant contributing factor in the offending.[14]

91 In considering the likelihood of Mr Ali posing a risk of endangering himself or others as a result of his mental impairment, in my view his risk of sexual reoffending must be at least moderate. I make that assessment on the basis of the following factors; the nature and repetition of the index offending, Mr Ali's ongoing denials and apparent lack of insight in relation to the offending, and the broader context of both his cognitive deficits and his past history of alcohol use and illicit substance use. I take into account the fact that a period of approximately 2 and a half years imprisonment may have achieved some deterrent effect, however Mr Ali has not had any offence specific treatment in prison. He has no prior convictions. He has no family or contacts in Australia and has very few protective factors available to him in the community in Australia.

92 There is obviously a need to protect people from offending such as his. The nature of the offences Mr Ali has been found to have committed are serious. The consequences for any victim are potentially significant. I take those matters into account.

93 Mr Ali will now be registered under the SORA. Rape is a class 3 offence with discretionary registration. Such an order may be made if I am satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons in the community. Given the nature of the offending and my view of risk, I am satisfied to the relevant standard and I propose to make that order. Once made, the mandatory term will be for 15 years. While not a matter to be taken into account in sentencing, it is a matter which I may take into account as part of the broad discretion under s.40(1)(f). It does provide some community protection requiring Mr Ali to comply with stringent reporting requirements such as advising of any change of address, employment, email and mobile numbers, or any proposed travel.

94 There are not adequate resources available for treatment and support of Mr Ali in the community. The positions of both Forensicare and DHHS are clear - he does not fit their criteria for accommodation or treatment; therefore they cannot provide either to him. His status as an unlawful non-citizen further prohibits him from accessing forensic disability services, and also services under the NDIS. No other accommodation or services have been proposed as an alternative. As such, the only CSO available would be a custodial order to prison.

95 If imprisoned on a CSO the nominal term would be 25 years. Given his lack of English, lack of literacy, and his cognitive deficits it is unlikely that he will receive therapeutic treatment. At the end of the nominal term - or at any earlier review - once released from prison he would at that time be transferred directly to immigration detention. The outcome in that sense would be the same, albeit with a significant intervening period of imprisonment on an order which has a therapeutic intention rather than punishment.

96 His time in custody has not been easy. He is isolated and has already attempted suicide on two occasions.

97 Section 26(4) dictates that I must not make an order committing Mr Ali to custody in a prison unless satisfied that no practicable alternative exists. Here, there is a practicable alternative in the form of immigration detention.

98 Immigration detention is a secure environment. It is restrictive.[15] His liberty and freedom of movement in that environment would be significantly curtailed.[16] It would address the issues of risk of endangerment and community protection, however it would do so in a setting which is not designed to be punitive.[17] In my view, in the face of s.26(4) and s.39 I am prohibited from imposing a CSO to prison when that alternative exists.

99 In my view and in the exercise of my discretion, it is appropriate in the complex circumstances of this case to impose an order which releases Mr Ali on a Non Custodial Supervision Order.

100 I heard submissions from Mr McHenry regarding the appropriate person to supervise the Order. He submitted that I should nominate the Secretary to the Department of Justice and Regulation and not the Director of Public Prosecutions.

101 The Court in Richards (a Pseudonym) v The Queen[18] considered this issue. The court noted the Secretary to the DHHS has an existing legislated range of powers under the Act. In those circumstances the Court held that there is actually no requirement that a person be nominated to supervise the Order.[19] However the Court held that the legislative purpose of protecting the safety of the community would best be achieved by nominating a person who is charged with supervising a person subject to a supervision order. The court ultimately decided that the DPP was the appropriate person to supervise.

102 In my view, the same approach is appropriate here. The Victorian law Reform Commission in its review of the Act considered the Director should be party to proceedings to represent the interests of the community. The community's interest here when Mr Ali is released from imprisonment lies in protection of the community. The Secretary to the DOJR has not been party to the proceedings. The Director has been represented throughout and the Office of Public Prosecutions has prosecuted the matter. Contact has been made with Border Force in relation to Mr Ali's immigration status and the OPP are in a position to and have liaised with Corrections Victoria and the Department of Immigration and Citizenship as to Mr Ali's impending release. The Director through the Office of Public Prosecution is well able to inform the Court of any breach, and to bring the matter back to court for any necessary variation.

103 Mr Ali will be released on a Non-Custodial Supervision Order with the following conditions:

a. That upon release from imprisonment Mr Ali surrender himself immediately to immigration detention; and

b. That Mr Ali notify the Director of Public Prosecutions, the Director of the Department of Justice and Regulation and this court if he intends to apply for a temporary Visa of any description; and

c. That Mr Ali comply with his reporting obligations under the Sex Offender Registration Act 2004.

104 The nominal term of the Order will be 25 years. The matter must return for review not later than 3 years from today.

105 Mr Ali will be subject to registration under the Sex Offender Registration Act 2004 for 15 years.

[1]Mr Ali was found not guilty on charges of Aggravated Burglary, Attempted Robbery and Common Law Assault.

[6] Richards (a Pseudonym) v The Queen (No 2) [2017] VSCA 174 at paragraphs 20-25

[7] See discussion in Richards (a Pseudonym) v The Queen (No 2) [2017] VSCA 174

[8] NOM v DPP and others [2012] VSCA 198

[10] RDM v DPP & Ors [1999] VSCA 86; [1999] 2 VR 270 as referred to in Nom v DPP at paragraph 21

[11] Richards (a Pseudonym) v The Queen (No 2) [2017] VSCA 174 at paragraphs 26-27

[12] Richards (a Pseudonym) v The Queen (No 2) [2017] VSCA 174 at paragraph 31

[14] Report of Ms Jane Lofthouse dated 1 May 2018 at p.10

[15] Frost v The Queen [2020] VSCA 53

[16] Underwood (a Pseudonym) v The Queen (No 2) [2018] VSCA 87 at paragraph 36

[17] Sahhitanandan v The Queen [2019] VSCA 115 at paragraph 36

[18] Richards (a Pseudonym) v The Queen (No 2) [2017] VSCA 174