DPP v SS

1 The Director of Public Prosecutions brings a prosecution against the accused for a charge of contravening a condition of a supervision order ('SO') pursuant to the Serious Offenders Act 2018 ('the Act').

2 This charge came before this Court by virtue of s 173(2) of the Act, having been transferred here by order of the Magistrates' Court. The case was able to be heard and determined summarily by me pursuant to s 174 of the Act, the accused having consented to this course and the prosecution not having opposed it. A plea of not guilty was entered. 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.

3 The applicant was convicted of murder in 2000. He was made subject to a SO under the Act on 23 August 2019.[1] The order permitted the applicant to reside in the community. On a review of that SO on 8 January 2021,[2] the order was modified to contain an intensive treatment and supervision condition requiring him to reside at Rivergum Residential Treatment Centre ('Rivergum'), a residential treatment facility for the purposes of the Act. The applicant commenced residing at Rivergum in February 2021.

4 One of the core conditions of the SO to which the accused was subject at the time of the alleged offending provided:

If the court requires [SS] to reside at a residential treatment facility, [SS] must obey all instructions given by a supervision officer or a specified officer under section 183 of the Act. [3]

5 The charge under consideration concerns an alleged breach of the above condition.

6 The current alleged offending arose on 9 July 2021. On that day, the accused was transported from Rivergum to attend a dental appointment in Ararat. On the way back, he apparently became irate in response to the enhanced security arrangements which had been put in place for the outing. His conduct in the vehicle in which he was travelling ultimately led to the accused being charged with contravening a condition of his SO and unlawful assault. At an earlier hearing before me, the accused was found guilty of unlawful assault and not guilty of the contravening charge.[4]

7 Upon the arrival of the accused back at Rivergum, further events unfolded in the reception area before the accused was permitted to return to his unit. A decision was made by Victoria Police that he should be arrested and interviewed with a view to being charged. It was determined that members of the Security and Emergency Services Group ('SESG') should assist Victoria Police members in the arrest.

8 It was during the course of the arrest of the accused that it is alleged that Edward Denouden, an SESG member, gave certain instructions to the accused which he did not comply with. That conduct is what is relied on in proof of the charge before the Court.

9 The charge is laid pursuant to s 169(1) of the Act, which provides:

169 Offence to contravene supervision order or interim supervision order

(1) 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.

Penalty: Level 6 imprisonment (5 years maximum).

10 As indicated already, the instructions required to be obeyed pursuant to condition 2.7 of the SO are those 'given by a supervision officer or a specified officer under section 183 of the Act'.

11 Section 183(1) provides:

183 Officers may give instructions

(1) In accordance with the supervision order or interim supervision order applying to an offender residing at a residential facility, a supervision officer or a specified officer (as the case requires) may give to the offender any reasonable instruction that is necessary to ensure -

(a) the good order of the residential facility; or

(b) the safety and welfare of offenders or staff at the facility or visitors to the facility; or

(c) compliance with the conditions of the supervision order or interim supervision order; or

(d) compliance with any directions given by the Authority to the offender in accordance with the supervision order or interim supervision order.

12 By virtue of s 197 of the Act, s 183 applies to residential treatment facilities as well as residential facilities.

13 It was unchallenged in this case that Edward Denouden was at the relevant time a 'specified officer'.

14 Five witnesses were called on the prosecution case.

15 Edward Denouden ('Denouden'), a prison officer and member of the SESG, gave evidence that he was acting as a specified officer at Rivergum on the occasion in question. He had been part of the SESG team tasked with assisting with the escort of the accused to his dental appointment. On their arrival back at Rivergum, he heard a lot of abuse being yelled by the accused towards staff in the reception area. He described approaching the accused, who was behaving in aggressive and abusive fashion towards staff who were processing him. Denouden stepped in and asked the accused to comply with directions. The accused questioned why SESG members were even present, abused and threatened Denouden, then lunged at him, causing Denouden to take a step back.

16 After the accused left the reception area, Denouden returned to normal duties. At 1.30pm, he received a phone call from David McCarthy, a team leader at Rivergum, to inform him that the accused was to be arrested by Victoria Police, and that the SESG members were required to provide assistance to Victoria Police.

17 There was a briefing conducted in the sally port area at about 2.00 pm. Victoria Police were briefed about an incident earlier in the day. It was indicated to Denouden that the accused was to be arrested for a breach of the SO, and that the SESG were to provide assistance to Victoria Police in the arrest due to the size of the accused relative to the police members who were present.

18 Denouden indicated that he proceeded to the rear door of the accused's unit in company with three other SESG members, David McCarthy, two Victoria Police uniformed members, and Greg Mitchell from Supervision Order Specialist Response Unit ('SOSRU'). Denouden attempted to open the door. It opened a short distance before being pushed shut. Denouden said he asked the accused to let them in as the police needed to speak to him about the incident earlier that day. The accused told Denouden to 'fuck off' and that he was not coming in. Denouden repeatedly asked the accused to open the door, but he refused to do so, said he was not coming out, and repeatedly stated, 'Guess what, cunts, I've got weapons in here'. He threatened to stab anyone who entered the unit.

19 The threats caused Denouden to ask one of his colleagues to get a shield to assist in the entry. The SESG members then used the shield to try to force their way into the unit, while the accused resisted this vigorously, and Denouden repeatedly told him to get back from the door. At one time, the accused grabbed hold of the shield. OC spray was used several times, and eventually, entry was gained. The accused was forced backwards with the shield and fell to the floor. He was placed in a leg lock, then arrested and handcuffed. Denouden indicated that his reason for telling the accused to move away from the door was so that the SESG members could enter the unit and help in the arrest of the accused.

20 In cross-examination, Denouden confirmed that he works primarily in the prison system. There was some ambiguity as to his role in that he was not aware whether he was permitted to operate his body-worn camera. During the briefing, he was not shown any documentation by Rivergum staff, and nor was he briefed as to the accused's past behaviour, other than earlier that day. Denouden indicated that it was not his job to help in the day to day management of residents in Rivergum, but rather, to provide additional security when required. He had not been trained in the extent and limitations of his powers in the facility. He said he had never been involved in removing a resident from his unit or assisting in an arrest before that day. On his understanding, David McCarthy was the team leader, but Greg Mitchell was in control of the arrest. Denouden explained the difference between an extraction in a prison and the removal of a resident from a unit. An extraction is a more structured process.

21 Denouden indicated that the courtyard at the rear of the unit was a secure place. He agreed that one of the options when faced with the conduct of the accused would have been to fall back, have the courtyard locked, and then speak with Rivergum staff. He indicated that he did not think of this option at the time, and in any event, it would have involved them turning their backs on the accused, which would have its dangers.

22 Denouden denied that at the time of his actions, he was holding a grudge against the accused as a result of the earlier incident in the reception area.

23 Shane McKiernan ('McKiernan'), a senior prison officer with the SESG, was with Denouden on the day. He confirmed the evidence of Denouden about the lead-up events. With some differences, he gave an account of the entry of the SESG members into the accused's unit and how it was achieved which accorded with Denouden's account. McKiernan was the person who obtained the shield. He confirmed the refusal of the accused to open the door, his refusal to step back even when the shield was being used, and of his efforts to grab onto the shield and resist their entry. McKiernan deployed capsicum spray and through it all, the accused refused to back away from the door.

24 In cross-examination, McKiernan indicated that he was following Denouden's orders and lead on the day in question. At the briefing, Rivergum staff explained that a decision had been made as a result of the accused's earlier conduct that he was to be removed from Rivergum. McKiernan confirmed having heard Denouden ask the accused three or four times to open the door of the unit. He denied that the process which unfolded was the same as an extraction in a prison. During the entry to the unit and arrest of the accused, McKiernan could recall no input or direction from Rivergum staff.

25 David McCarthy ('McCarthy') was working on the day as a team leader at Rivergum. He attended at the rear of the accused's unit as the field commander, in which capacity he passed on information to management about what occurred. Victoria Police and SESG were there to arrest the accused. McCarthy opened the locked gate to the rear courtyard, letting the SESG and police go inside. They explained to the accused that he was under arrest and to come out of the unit. He did not comply. He yelled out that he had three weapons. McCarthy described the entry of the SESG and Victoria Police members into the unit with the help of a shield.

26 In cross-examination, McCarthy gave evidence about the grounds on which staff members would be able to enter resident units. He said he was familiar with the Rivergum Residential Treatment Centre Information Booklet[5] ('the Information Booklet') which, as a matter of normal practice, would be given to new residents. He could not say whether the accused was given the booklet. It tells residents about their rights and responsibilities. McCarthy said that at the briefing, Greg Mitchell of SOSRU spoke to the Victoria Police members, who in turn spoke to the SESG members about a plan for the arrest which was to take place. In the three years McCarthy had worked at Rivergum before the day in question, this was the first arrest he had seen. Of the two arrests including this one of which he had knowledge, both had involved the use of SESG. When asked if there was any procedure at Rivergum as to how to carry out an arrest, he indicated this would be up to Victoria Police and SESG, upon whose help Rivergum rely. The police would attend Rivergum and 'arrest somebody as in the community'.[6] It was the decision of the Acting General Manager to involve SESG in the arrest.

27 McCarthy stated that he had worked with the accused since his arrival and had some understanding of his behaviour. He knew him to be someone 'who could react poorly in a changing situation that he had not had time to process'.[7] By the time he attended the unit, McCarthy knew that the accused had been locked in.

28 McCarthy agreed that in his dealings with residents, he would try to take into account their own particular circumstances, as everyone is different. He gave evidence about behaviour support plans prepared in respect of residents by clinicians which may be shared with staff members to provide advice on how to interact with individual residents. He had read the accused's behaviour management plan[8] in the past, but not on the day. The plan indicated that when the accused became dysregulated, disengaging may be a way to proceed. That sometimes worked with him. When they got to the unit, it was apparent that the accused was emotionally dysregulated. McCarthy did not brief SESG on how best to handle the accused. He did not think it was his role to do so. The police were there to carry out the arrest with the assistance of SESG. His role was simply as a field commander. Once the accused was upset, McCarthy did not advise SESG to back off and allow him to cool down. It was not his role. SESG are a specialist group who operate in different ways to the way in which McCarthy and his colleagues would operate. It was not for him to interrupt and tell them what to do.

29 McCarthy did not telephone the accused. He had a radio but no phone. Nor did he instruct anybody in the command centre to telephone the accused.

30 He confirmed that there are interview rooms at Rivergum. Sometimes, residents go to those rooms when something needs to be explained to them or a warning given. That procedure was not followed in this case. The risk of having the accused in a room with a staff member would have been too great.

31 Leigh Kewish ('Kewish') is employed as a specialist case worker ('SCW') at Rivergum and was an acting team leader on that day, meaning that he was acting at the same level as McCarthy. He opened the car door for the accused on his arrival back from Ararat, and saw his dysregulated and aggressive behaviour in the reception area. It caused him to operate his duress button at one point.

32 Kewish indicated he had become familiar with the accused at Rivergum, and had had some good interactions with him. His practice was to try to interact with residents in a way which plays to their strengths and avoids their triggers. A strategy used with the accused when he became emotionally dysregulated was to give him time to calm down and gather his thoughts. That strategy was mentioned in the accused's positive behaviour support plan.[9] He had employed that strategy in some circumstances in the past with success.

33 Kewish indicated that he had no role in the accused's arrest, and was not present. Nor was he a party to the decision to involve SESG. He did speak to the accused on the telephone at about 2.00 pm. He phoned to say he would not be able to attend treatment that day. He sounded much closer to his baseline presentation and more regulated than when Kewish had seen him in the reception area.

34 Detective Acting Sergeant Greg Mitchell ('Mitchell'), the informant, is attached to SOSRU located in Rivergum. He described the facility and the role of SOSRU members. Mitchell gave evidence about the induction of the accused at Rivergum, at which a staff member took him in detail through the conditions of the SO, including the relevant condition, and he signed the order as having understood it.

35 On 8 July 2021, the day before the trip to the dentist, Mitchell attended a meeting between Rivergum staff and members of the Post Sentence Branch. Concerns had been expressed about the escalating dysregulated behaviour of the applicant. The purpose of the meeting was to discuss management strategies and to assess the risk associated with the planned outing.

36 On 9 July 2021, Mitchell was in the SOSRU office when he became aware of a disturbance coming from the sally port. He went to the electronic monitoring room and observed what was taking place, which essentially involved the accused behaving in aggressive fashion towards staff members.

37 Shortly after the accused returned to the residential area, Mitchell was informed about an incident which had occurred in the car on the way back from the dentist in which an SCW had been threatened by the accused. Mitchell formed the opinion that the accused had unlawfully assaulted the worker and breached his SO. He decided that he would need to be arrested and interview. The arrest should occur as soon as possible as the accused would pose a significant risk to staff and other residents while he remained at the facility.

38 Mitchell put a plan in place for the arrest. He contacted local uniformed police to arrange for the divisional van to attend. SESG members were available to assist with safely securing the accused. It was Mitchell's role to arrest the accused for the purpose of the interview. Mr Mitchell decided to involve the SESG as they are better trained in relation to securing people in units, and because there would be only three Victoria Police members involved including himself. SESG were to take the lead should the accused be non-compliant. Significant resourcing for the arrest was necessary in view of the size, volatility and unpredictability of the accused, along with the fact that he is a serious violence offender.

39 The Stawell divisional van arrived at Rivergum at 2.00pm. A briefing was held in the sally port attended by four SESG members, the two divisional van members, Mitchell, McCarthy and another SCW, Carl Barry. At the briefing, Mitchell informed those present that he intended to arrest the accused for unlawful assault and breaching his SO. He informed them that the accused was in a non-compliant and volatile state and that some resistance may be expected. Entry to the unit would be via the back door. SESG would, as he put it in his evidence, 'take the lead on the physicality side of that'.[10] If the accused was compliant, he would simply be placed in handcuffs by the police and walked to the divisional van. Mitchell informed those at the briefing that the accused was a serious violence offender on a SO at Rivergum.

40 At 2.12pm, those involved in the arrest proceeded to the rear of the accused's unit. After the door to the courtyard was unlocked, the SESG members and two divisional van members entered the courtyard. Mitchell stayed at the gate. After the members entered the courtyard, the accused commenced to yell out, asking why they were there. The SESG members went to the back door of the unit and Denouden called out to the accused that the police were present to arrest him and he needed to come out of the unit. He yelled out that he had done nothing wrong. Mitchell called out that he was being arrested for breaching his order. The accused repeatedly swore at the people outside his unit. Attempts by the SESG to open the door were unsuccessful. The accused was instructed to stop blocking the door and to move away from the door. At about this time, the accused commenced to make threats about having knives and shivs. The instruction to step away from the door was repeated a number of times. At the mention of knives, one of the SESG members obtained a shield. They then forced the door open with the use of the shield and capsicum spray. Entry was gained and the SESG members were followed by the Victoria Police members into the unit. Mitchell went to the door and observed the accused face down on the floor in handcuffs.

41 The accused was taken to the divisional van where Mitchell informed him that he was under arrest for breaching his SO during the trip back from the dentist. He was cautioned and his rights were explained to him. He was taken to Ararat Police Station where he received some OC spray aftercare.

42 After a trip to the hospital in relation to some minor injuries he had, the accused arrived back at Ararat Police Station at 7.40pm. At 9.35pm, a tape recorded interview commenced.

43 During the examination-in-chief of Mitchell, the body worn camera footage from one of the police members was played to the Court and tendered.[11] The footage showed the final stages of the entry of the SESG members into the unit with the use of the shield and the arrest of the accused. The footage confirmed that the accused was blocking opening of the door in some manner, that he was given the instruction to move away, and that he was abusive and threatening to those attempting to enter the unit, claiming to have 'shivs'.[12]

44 The transcript of the interview of the accused was also tendered as an exhibit.[13] In the interview, the accused denied any inappropriate behaviour by him in the sally port. In respect of the entry into his unit, he said he 'got barged in on in my unit and smashed to the ground and after I turned around and put my hands up'.[14] He claimed he was caused injury by this event. When asked to describe the manner of the entry of the SESG members, he said, 'I don't wanna talk about it'.[15] He went on to say 'SESG did what they did to me and...they've got away with it, and they do that in gaol all the time. And I didn't deserve what they did to me'.[16] He said that there was conversation at the back door in which he asked why they were taking him. They did not say. He said he was clueless as to why he was being taken. He did say, however, that at some stage he was told that the police were there to arrest him. He said that the entry of SESG was delayed 'cause I was standing at the door'.[17] When asked if he was pushing against the door, he said, 'I was standing at it, yeah'.[18] When asked if he had his foot at the base of the door to prevent entry, he said, 'I dunno'.[19] When it was put to the accused that he was blocking the door and refusing entry and was directed to back away from the door, he said, 'I don't know. Are they there - do they have ownership over me? I'm not a prisoner...Why are they there anyway?'[20] He said that no one told him that they had the power to give instructions. The accused said that he had a good understanding of the conditions of his SO.[21] He said he didn't do anything prior to the police arriving that warranted their 'rocking up and taking me'.[22] He agreed he argued with them, but denied blocking the door. He went there and was talking to them.

45 In cross-examination, Mitchell stated that his one meeting with the accused before the day of the arrest was the preceding day. He spoke with the accused to see whether some common ground could be found so that the accused would be able to conduct himself more calmly in future. They had a good conversation, the accused being quite reasonable, polite and respectful. Mitchell advocated on the accused's behalf for the outing to proceed.

46 Mitchell indicated that he was not aware of the existence of a positive behaviour support plan for the accused. He was aware that such plans did exist for some residents, but had had little to do with them. He did not recall having been told of a strategy employed by Rivergum staff with the accused of retreating and letting him cool down.

47 It was clear to Mitchell when observing the behaviour of the accused in the sally port area that he was in a very heightened state which was very different from his presentation the day before.

48 When asked what the urgency was to arrest the accused, in light of the fact that he was locked in his unit, Mitchell stated:

His behaviour. I mean I can't keep him locked in his unit for an extended period of time. At some point we're going to have to arrest him before he's mingling back out with the other residents and staff...it couldn't wait another day, or two days or later on down the track. It needed to be done that day, and the sooner we could get him out of that environment the safer it was for everyone.[23]

49 Mitchell agreed that had he arranged to telephone the accused he could possibly have ascertained what his state of mind was. He said that rather than do that, he chose to go directly to an arrest. He did not want to forewarn the accused of an arrest.

50 Mitchell indicated that he did not believe it would have been appropriate to arrange for the accused to attend a secure interview room in the administration block at Rivergum. When that had been done in the past, it was with people who were calm, not those who had just committed violent offences.

51 On his attendance at the unit, it became clear immediately that the accused was in an upset state. It would have been an option to pull the Corrections and Victoria Police staff back from the courtyard, lock the courtyard and speak to the accused, but Mitchell did not do this for the same reasons he did not call ahead. He was seeking to avoid a siege situation in which the accused might fashion some weapons or cause damage to his unit. A 'whole range of negative scenarios were possible there',[24] he said, and there was a danger that pulling back might create as much risk as it would seek to alleviate. Mitchell indicated that this was a call he had made, and he would make the same call tomorrow.

52 Mitchell indicated that he had been provided no advice by Rivergum staff on how to interact with the accused during the arrest phase.

53 He was aware that in the incident on the way back from the dentist, the involvement of SESG was one of the reasons why the accused became upset. Notwithstanding that, Mitchell admitted that he had directed the use of SESG in the arrest. He did not view it as an act which had the capacity to inflame an already volatile situation. Rather, he felt that it would lead to a safer arrest with no injuries.

54 When it was put to Mitchell that in circumstances where the accused, while locked in his unit, did not pose a threat to anyone in the short term, it would have been reasonable to have at least made enquiries with him to 'see how he was travelling',[25] he 'fundamentally disagreed,' having seen how the accused had behaved in the sally port and heard the report of the incident in the car. He also disagreed that it would have been reasonable for him to have waited a period of time to allow the accused to calm down before arresting him.

55 In re-examination, Mitchell elaborated on his concerns about the accused being forewarned of an impending arrest. As for his disagreement about it being reasonable to wait for the accused to calm down before arresting him, he said:

There'd already been an amount of time between the incident and the arrest as it was. But we couldn't leave it for an extended period - we couldn't leave it for any period of time where he needed to interact with other residents and staff...because of the risk he posed. So, he needed to be extracted from that facility before any of that took place.[26]

56 At the close of the case for the prosecution, Mr Marsh tendered as exhibits, on the defence case, the Information Booklet and the positive behaviour support plan for the accused. No other evidence was led.

57 Ms Champion indicated that the instructions given by Denouden relied upon by the prosecution which were allegedly not obeyed by the accused were the instructions to:

58 Ms Champion acknowledged that to be an instruction under s 183 of the Act, it would need to be reasonable. She submitted that the relevant parts of subsection (1) are (a) and (b).

59 Ms Champion submitted that the assessment of whether an instruction is a reasonable one under s 183 involves an objective enquiry. She submitted that the Court must look at the facts and circumstances known by Denouden, or reasonably capable of being known by him, because he is the person who issued the instructions. The question would then be whether, having regard to those facts and circumstances, the particular instruction was reasonable in all of those circumstances.

60 Ms Champion indicated she was unaware of any authorities directly on point on the meaning of 'reasonable instruction' for the purposes of s 183. However, she submitted that there are cases in the areas of the issue of search warrants and the power to arrest which are instructive as to the assessment of the meaning of the words in s 183. She pointed to three such cases.[27] Ms Champion developed in detail her submission as to why these cases, in spite of the fact that each case concerned the analysis of legislation that stipulated a particular state of mind to be held by the person specified, should be viewed as instructive, and supportive of her contention as to the meaning of 'reasonable instruction' in s 183.

61 Ms Champion acknowledged that there is no reference in s 183 to a requirement that the specified officer have a belief or suspicion based on reasonable grounds, and no such requirement should be read into the provision.

In order for the constraint that is inbuilt in s 183 to properly limit the exercise of state power - that is, to prevent against (sic) an arbitrary abuse of it - it would only make sense that the discretion reposed in the specified officer be exercised based on what was known to that specified officer. Otherwise there could hypothetically be an abuse of power which, on an assessment after the fact of circumstances unknown to that specified officer, could perversely render the exercise of that power reasonable.[28]

The fact it is a discretionary power has to mean that the circumstances underlying an assessment of what is reasonable must be known, balanced, considered, weighed by the person making the decision - the person empowered by the provision to make that decision - in order to exercise that discretion.

64 Ms Champion further submitted that in making an assessment of what is reasonable under s 183, the Court should also have regard to the primary purpose expressed in s 1 of the Act of providing for enhanced protection of the community.

65 Turning to the facts, Ms Champion summarised the evidence of Denouden, whom she described as the principal witness. She took the Court through the knowledge Denouden had at the time of giving the instructions in question. She briefly summarised evidence from other witnesses supporting Denouden, and noted the body worn camera footage as well.

66 Ms Champion submitted that the question of whether the informant's decision to arrest the accused was a reasonable one is not relevant in this case. In the alternative, she noted the reasons stated by Mitchell for not delaying the arrest or taking other steps.

67 Ms Champion finished by submitting, in summary, that Denouden, an authorised officer, gave reasonable instructions under s 183 of the Act. The accused, by act and omission, failed to obey those instructions. His statements and conduct demonstrated his understanding of the instructions, and his willingness to flout those instructions.

68 Mr Marsh made it clear in his submissions that there was no dispute that Denouden was a specified officer, that he gave instructions, and that the accused failed to obey them.

69 He commenced his submissions by responding to Ms Champion's proposed meaning of 'reasonable instruction'. He described the prosecution as being 'inordinately interested in the mind of Mr Denouden, a matter which, in my submission, is entirely irrelevant to you Honour's consideration'.[29]

70 He submitted that if the legislature had intended to create a test based on the reasonable belief of the person issuing the instruction, it could have done so.

71 Mr Marsh submitted that the authorities relied on by the prosecution in support of its submissions were all distinguishable because they were all concerned with the question of whether a reasonable belief existed. No such test applies here. As he put it, Mr Denouden's state of mind could not be of less relevance to the Court. What is relevant is whether or not the instruction was reasonable, and that 'has to be taken as a broad and general enquiry into the reasonableness of the instruction'.[30]

72 Mr Marsh submitted that the hierarchical nature of the prison and supervision environment would create situations where the reasonable test would be rendered nugatory if it was based on the reasonable belief of the person giving the instruction, because in the majority of cases, people would give instructions because they were told to do so.

this ship of reasonableness was but a distant speck on the horizon by the time the SESG approached [the accused's] unit. That ship had well and truly sailed when the decision had been made to engage SESG to effect the arrest.[31]

74 It was submitted that to give proper voice to the protection afforded by the proposition of reasonableness, I must take into account the fact that the accused was in an environment where his liberty was curtailed.

75 Mr Marsh submitted that the issues pertaining to the accused and the reasons why he is confined to Rivergum are well known to people in authority at Rivergum.

76 At the relevant time, it was known that the accused was contained in his unit. No immediate threat was posed to anybody. The crisis which ensued, submitted counsel:

had been entirely confected by Rivergum and Victoria Police, and then put into motion through the use of SESG, in a way that one may well say, could not have been better calculated in order to push the very buttons that Rivergum knows that [the accused] has.[32]

77 When asked why the informant would not be entitled to form a view that the accused had committed offences and would need to be arrested and interviewed, Mr Marsh submitted that the informant would be entitled to do that, but it would not make the instructions given by Denouden reasonable. It would go, however, towards the consideration of the overall reasonableness of the instruction. He made it clear that he was not challenging the legitimacy of the decision to arrest the accused. He urged the Court to not concatenate two separate issues, namely, the decision to arrest, and the question whether the instructions were reasonable.

78 Mr Marsh submitted that in light of the knowledge the informant had about the accused, it would have been reasonable for him to make enquiries about the most appropriate way to deal with him in his agitated state. What was conspicuously absent in the events was any regard by anybody to the psychological makeup of the accused and the fact that he was in a therapeutic environment.

79 Mr Marsh reiterated that the subjective beliefs of Denouden and any other person are no part of the test the Court must consider. The Court would have to look much further back than Denouden to determine whether or not this particular course of action was reasonable or not.

80 In challenging the reasonableness of the instructions given, Mr Marsh pointed out that, the accused being confined to his unit, there was no threat to anybody at the time of the arrest. Time was available to the arresting officers. There was no sense of imminence which justified the use of the SESG to precipitate a confrontation in the way it occurred. It would have been perfectly open to the officers to withdraw safely from the courtyard. The fact they did not do so went to the state of mind of the arresting parties, showing that they did not come with any expectation of engaging in a reasoned process, but rather with a view to using maximum force. He submitted that it showed 'the level of belligerence that was being employed in this arrest of the accused'.[33] I note that Mr Marsh, when challenged on this characterisation, backed somewhat away from it.

81 In concluding his submissions on the matter of whether the instructions were reasonable ones, Mr Marsh submitted:

It's important to leaven the exercise of...control in this particular situation with at least a scintilla of sensitivity to [the accused's] own circumstances. And that's something which in my submission is notably absent here.[34]

82 Moving to the question of whether, if the Court was satisfied that the instructions were reasonable, the accused may have a reasonable excuse for disobeying them, Mr Marsh took me to some passages in the police interview in which the accused seemingly questioned the authority of the SESG members to tell him what to do. He also took me to some portions of the Resident Information Book pointing to the need to comply with the lawful instructions of Rivergum staff.

83 He then submitted that the reasonable excuse relied upon by the accused is that:

The people giving these instructions were SESG, were not Rivergum staff, and at no stage did anybody pause to explain to [the accused] that the SESG staff were exercising authority in precisely those terms under the Act.

84 Mr Marsh submitted that it was apparent that the accused held a belief, clearly expressed in the interview and reflected in some of what he said to the SESG members at the time of his arrest, that SESG were not entitled to give him instructions. He therefore had a reasonable excuse for failing to obey the instructions.

85 When confronted with the question whether or not the accused could rely in this fashion on something which was the result of a misapprehension by him as to the law, Mr Marsh submitted that it was not merely a question of ignorance on the accused's part, but he had actually been misinformed about the extent of the powers that people who dealt with him may have.

86 Ms Champion noted that there was no evidence that the accused had ever read the information book, or had it read to him. In any event, she noted a section of the book in which reference was made to Corrections staff giving instructions to residents. Ms Champion also reminded the Court of the evidence of the informant that the accused was taken through the conditions of the SO by staff at Rivergum at the time of his induction.

87 As for the reasonable excuse relied upon, namely, a misapprehension about what a specified officer was, his ignorance of the law was not something capable of forming a reasonable excuse. She submitted that the evidential burden in respect of the defence had not been discharged.

88 Despite their differing submissions before me, the fact is that the parties are in heated agreement that the test of whether the instructions given by Denouden were reasonable is an objective one. Where they differ is as to whether the subjective knowledge of Denouden should have any part to play in the Court's assessment whether the instructions were reasonable, and how widely and how far back the Court should look in making that assessment.

89 The prosecution submitted that whilst the enquiry is an objective one, it should be informed by what was known by Denouden, or reasonably capable of being known by him.

90 The defence, on the other hand, submitted that what was known or in the mind of Denouden is entirely irrelevant, as is what was known or in the mind of any other person. What is necessary is 'a broad and general inquiry into the reasonableness of the instruction[s]'.

91 Insofar as the submissions of Ms Champion seemed to limit the field of enquiry to what was in the mind of Denouden, I consider that the submissions would unduly restrict the Court's consideration of the overall facts.

92 As for the submission of Mr Marsh that what was known to or in the mind of Denouden is entirely irrelevant, I do not accept the submission. I see no reason why what Denouden knew would not be relevant when it comes to an assessment by the Court of whether the instructions he gave were, objectively, reasonable.

93 It seems to me that insofar as the submissions of Mr Marsh invited the Court to look much further back than the involvement of Denouden to determine whether his instructions were reasonable, he was inviting me to consider the knowledge that some people in Rivergum had about the personal characteristics and psychological makeup of the accused. This did not sit comfortably with his submission that the subjective views of Denouden and others are irrelevant to the task of determining reasonableness.

94 In my view, what was in the minds of people, including Denouden and Mitchell, would be relevant to an assessment of whether the instructions given by Denouden were, viewed objectively, reasonable ones. The submission of Mr Marsh that a broad and general enquiry into the reasonableness of the instructions is required may well be an apt way of describing the process. That does not mean to my mind, however, that the subjective beliefs or knowledge of individuals may not be relevant to the task.

95 The assessment as to reasonableness must be carried out in the context of the important circumstances of this case.

96 An incident occurred in the car on the way back from the trip to the dentist in which the accused had apparently assaulted a Rivergum staff member, and in doing so, apparently contravened a condition of the SO.

97 Mitchell became aware that something was amiss that day when he observed the accused seemingly misbehaving in aggressive fashion in the reception area. Shortly thereafter, he was informed about the incident in the car that had happened not long before. It is unsurprising that Mitchell viewed the event in the car seriously. Assaulting a staff member of Rivergum, and in particular, contravening a condition of a SO, would be serious matters. The latter offence has a maximum penalty of 5 years' imprisonment, and the need to maintain control in an environment such as Rivergum is obvious. Furthermore, the accused's behaviour had been seen to deteriorate over a period of time leading up to the day in question.

98 In my view, it is entirely unsurprising that Mitchell decided that the accused would need to be arrested and interviewed. As to his view that such arrest should occur as soon as possible for safety reasons, that was a view which was perfectly reasonable, and indeed, as I see it, quite correct.

99 Once the decision had been made to arrest the accused, it had to be accomplished in the safest way possible. Victoria Police needed to be involved, but in the circumstances of this case, with what was known of the criminal history of the accused, his deteriorating behaviour in the lead-up to the day, his conduct on that day, and his size, it was a perfectly appropriate decision to involve SESG in the arrest. It would have been foolhardy not to do so.

100 Mr Marsh submitted that the ship of reasonableness, as he put it, had well and truly sailed when the decision was made to engage SESG to effect the arrest. I do not accept that submission.

101 As to Mr Marsh's submission that what later unfolded had been 'entirely confected by Rivergum and Victoria Police', that submission entails a serious accusation which I entirely reject.

102 In my view, there was nothing at all unreasonable or inappropriate about the decisions made by Mitchell to arrest the accused, and to do so with the assistance of SESG.

103 Insofar as Mr Marsh submitted that it would have been reasonable for Mitchell, in light of the knowledge he had, to make enquiries about the most appropriate way to deal with the accused in the agitated state he was in, and for Mitchell and others to have regard to the psychological makeup of the accused, and to the fact that he was in a therapeutic environment, no doubt the central thing in the mind of the informant was to take into custody in timely and safe fashion a person believed to have committed a serious criminal offence. He would have been justified in concluding, had he specifically considered the matters, that the personal makeup of the accused and the fact that he resided in a therapeutic environment were things which needed to take a backseat at that time.

104 In the course of his submissions, Mr Marsh laid the blame for the unfortunate events surrounding the arrest of the accused at the feet of the authorities. In reality, it was the uncontrolled and aggressive behaviour of the accused which led to the confrontation.

105 No doubt, when Denouden and the others approached the rear door of the accused's unit, they would have hoped for a level of cooperation which would avoid any confrontation. They were, however, ready to deal with confrontation should the accused seek it out. To suggest, however, that once the accused failed to comply, and exhibited aggression, those carrying out the arrest should simply have retreated and reconsidered their options, was an unrealistic proposition. The accused was being arrested for suspected crimes. He could not be the one to determine the timing and circumstances of his arrest. That was a matter for others to determine.

106 Insofar as Mr Marsh submitted that the failure of the arresting group to retreat showed 'the level of belligerence that was being employed in this arrest of the accused', I do not accept that submission either. I do not believe there was any belligerence evident in the conduct of Mitchell or any of those involved in the arrest of the accused. All of them were simply endeavouring to carry out their respective jobs to the best of their ability. The selection of the timing and means of the arrest, and the continuation with the plan for the arrest which had been decided upon in the face of the resistance of the accused, were perfectly reasonable.

107 As for the suggestion that the accused should have been warned in advance of his impending arrest, and that after his initial resistance, arrangements should have been made for him to attend an interview room in the administration block, neither one of these suggestions was realistic, to my mind.

108 Having considered all of the evidence and submissions, I am satisfied that the instructions given by Denouden, given as they were in legitimate pursuit of a plan which had been decided upon to arrest the accused safely and as soon as possible, were reasonable ones necessary to ensure the good order of Rivergum and the safety and welfare of those who sought to arrest the accused, and the accused himself. Indeed, although this was not relied upon by the prosecution, the instructions may well have been necessary to ensure the safety and welfare of staff and residents more broadly at the facility.

109 Turning to the reasonable excuse relied upon by the accused, he knew perfectly well that the SESG members were at his doorstep, with Victoria Police close behind them, intent on arresting him. He knew what had occurred earlier in the day, so could have been in no doubt what he was being arrested for. He was aware of the fact that one of the conditions of his SO required him to obey all instructions given by a specified officer under section 183 of the Act. If he was ignorant of the fact that Denouden was a specified officer and was entitled to give him instructions, then his ignorance of that legal reality can not avail him by way of supporting a defence of reasonable excuse.

110 Assuming but not deciding for present purposes that the accused succeeded in this case in discharging the evidential burden resting on him in respect of the defence upon which he relies, I am satisfied beyond reasonable doubt that the accused had no lawful excuse for his failure to obey the instructions of Denouden.

111 I am also satisfied beyond reasonable doubt that the other elements of the crime with which the accused is charged have been established.

112 For the reasons I have stated, I find the accused guilty of the charge of contravening a condition of his supervision order, namely, condition 2.7 of the order.

[1] Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600.

[2] Secretary to the Department of Justice and Community Safety v SS (Review) [2020] VSC 849.

[3] Condition 2.7 in the order as it was stated following the review of the SO on 8 January 2021.

[4] DPP v SS [2021] VSC 563.

[8] A reference to Exhibit 2, the accused's Positive Behaviour Support Plan dated March 2021.

[27] Hyder v Commonwealth [2012] NSWCA 336; (2012) 217 A Crim R 571 (NSW Court of Appeal); R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (NSW Court of Appeal); and George v Rocket [1990] HCA 26; (1990) 170 CLR 104.