I K v Secretary to the Department of Justice [2012] VSCA 12

2 It was a brutish example of what is often an especially cruel offence. At about 7.30pm on 5 April 2005, the victim was walking home after attending an induction session conducted by the employer with whom she was shortly to commence working. It was dark. She was nevertheless observed by the appellant. He commenced to follow her. She became apprehensive. When it became obvious that she was not merely being followed, but being stalked, apprehension surely turned to terror. This is the stuff of which nightmares are made.

3 She reached the entrance of a secondary college. The appellant ran to her from behind. She was in the act of making a pretend call on her mobile phone: she hoped he would think that she was about to get help. It did not work. He placed an arm around her neck while holding a knife to her throat. She was manoeuvred into a place where they could not be seen. He told her to 'shut up.' He added: 'Don't say a word or I will slit your throat'.

4 The appellant then ordered the victim to commence undressing. He also drove home her lack of choice in the matter by himself pulling her blouse over her head. Doubtless by design, this increased her helplessness because she could no longer see him. He on the other hand was perfectly placed to observe her distress, and hear her protestations - which included the information that she was a virgin. It made no difference. He proceeded to rape her twice: in one, the penetration was digital; in the other, penile. He ejaculated inside her.

5 After these assaults, the appellant told the victim not to remove her blouse from her head, and not to move, until he had gone. As he fled, however, he left his

cell phone behind. When he realised that it was missing, he decided to get it back. So he returned to the scene.

6 This was a mistake. The victim had, in the meantime, reported the incident to friends, and supplied them with a description of her assailant. They went to the school, saw the appellant in search of his phone, and detained him until the police arrived.

7 Both victim and aggressor were young. The victim was not then 15 years old. The appellant, who was born on 10 August 1987, was at the time of the offending only 17 years and eight months old. When, having pleaded guilty in the County Court, he was sentenced on 15 December 2005, he had reached 18 years and 4 months. Despite his youth, however, the sentencing judge determined that the restricted range of punishments allowed under the youth justice system would not reflect the gravity of his crimes. Her Honour therefore declined to sentence the appellant pursuant to the regime established by the Children, Youth and Families Act 2005, but rather dealt with him under the Sentencing Act 1991. He was ordered to serve two and a half years' imprisonment for the digital rape, and four years' imprisonment for the penile. One year of the sentence on count 1 was ordered to be served cumulatively upon the sentence imposed on count 2. The total effective sentence was therefore five years' imprisonment. Her Honour ordered that the appellant serve a minimum of three years before becoming eligible for parole.

8 There is no suggestion that the judge was not justified in making these orders.

9 The non-parole period having expired, the appellant was released on parole on 10 February 2009. Unfortunately, however, he did not remain out of trouble. In August that year he became angry when he perceived that his then female partner was seeing another man. He expressed his anger - and breached his parole - by slashing the tyres of the rival, and threatening to kill his partner.

10 The appellant was convicted of these offences on 4 September 2009. Twelve days later he was returned to custody to complete his earlier sentence. It was while in custody in these circumstances that the Secretary to the Department of Justice made an application that the appellant be subjected to a supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009 ('the Act').

11 Although the Secretary's application came before the County Court, it was not heard by the judge who sentenced the appellant on 15 December 2005. On 4 April 2011, a different judge ordered that the appellant be made the subject of a supervision order commencing on 4 April 2011 and remaining in force for five years. Her Honour fixed 3 April 2014, a date three years from the date of the supervision order, as being the last date for the first review of that order.

12 She also imposed the core conditions for which provision is made in s 16 of the Act. These are that, during the period of the order, the appellant must:

(a) not commit a relevant offence in Victoria or elsewhere;

(b) attend at any place as directed by the Adult Parole Board ('the Board') for the purpose of administering the conditions of the order;

(c) attend at any place directed by the Board for the purpose of making assessments required by the court, the Secretary, or the Director of Public Prosecutions, for the purposes of the Act (including a personal examination by a medical expert for the purpose of providing the court with a report to assist it to determine the need for, or form of, any of the conditions of the order);

(d) report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of these conditions;

(e) at least two clear days before the date of commencing any new or changed employment (whether paid or unpaid), notify the Board of that change;

(f) not leave Victoria without the permission of the Board;

(g) if the court requires the appellant to reside at a residential facility, obey all reasonable instructions given by a supervision officer that are necessary to ensure the good order of the residential facility or to ensure the safety and welfare of offenders or staff or visitors to the facility;

(h) comply with any directions given by the Board under the emergency power of the Board to give directions to an offender to manage him or her in a way that is inconsistent with, or not provided for by, the conditions of the supervision order.

13 In addition to those orders, her Honour also imposed two sets of additional conditions. Those in the first set rely upon s 17 of the Act, which provides that the court must consider imposing certain generally specified conditions over and above those required by s 16. Following such consideration, the conditions which the court actually imposed are that the appellant:

(i) reside each night at a specified address - or somewhere else if so directed by the Board - and not move without the prior written consent of the Board;

(ii) be present at such prescribed place of residence between 10.00pm and 7.00am unless otherwise directed by the Board;

(iii) not, without the prior written permission of the Board, visit school premises and public parks between 4.00pm and 8.00am;

(iv) attend for assessment, and participate in treatment or rehabilitation programs or activities, as directed by Corrections Victoria's Sex Offender Programs, or the Board;

(v) attend the Community Forensic Mental Health Service for assessment, as required, and participate in treatment or rehabilitation programs or activities as directed by the Director, Victorian Institute of Forensic Mental Health or his or her nominee, unless otherwise directed by the Board;

(vi) attend for assessment, and attend and participate in treatment and rehabilitation programs and activities, for alcohol and/or drug addiction as directed by the Board;

(vii) abstain from the consumption of alcohol except with the prior written consent of the Board;

(viii) not use prohibited drugs, obtain drugs unlawfully, or abuse drugs of any kind;

(ix) submit to breath testing, urine analysis, or other test procedures (other than blood tests) approved by the Secretary for detection of alcohol or drug use or otherwise as directed by the Board;

(x) not join, affiliate with, attend on the premises of, or attend at the activities carried on by, any club or organisation in respect of which there are reasonable grounds for believing there is participation or attendance of female children aged between 12 and 16 years, without the prior written consent of the Board;

(xi) not have supervised or unsupervised contact with female children aged between 12 and 16 years, save for interaction with female members of his family, and interaction which is unable to be avoided in the course of his lawful daily activities, without the prior written consent of the Board;

(xii) not, without the prior written consent of the Board, have contact with any convicted sex offender except for the purposes of sex offender treatment programs;

(xiii) not have any contact whatsoever either directly or indirectly with the victim or any members of the victim's family without the prior written consent of the Board;

(xiv) comply with any form of electronic monitoring or any form of monitoring as directed by the Board; and

(xv) attend for personal examinations by a medical expert for the purpose of providing a report to the Board to assist in determining the need for, or form of, any direction it is permitted to give to the offender under the supervision order.

14 The judge also imposed a second set of additional conditions. The source of the relevant power is to be found in ss 19 and 20. Section 19 empowers the court to impose any other conditions that it thinks appropriate to reduce the risk of reoffending or to provide for the reasonable concerns of the victim about her safety and welfare. Section 20 provides that the court has power to authorise the Board (a) 'to give directions to an offender in relation to the operation of any condition'; and (b) 'to give a direction that an offender is to reside at [premises appointed by the Governor in Council as] a residential facility'.

15 As expressed in the order, the second set of additional conditions consists, in number, of three additional conditions; but two - additional conditions (xvi) and (xviii) - are directed to one purpose, which is to require the appellant to comply with any direction of the Board that, pursuant to s 20(1) and the judge's authorisation, the Board is entitled to give.

16 The third additional condition in this second set is additional condition (xvii). It provides that:

The Board is authorised to give directions to [the appellant] that he is to reside at a residential facility within the meaning of the Act and, whilst residing at a residential facility, [the appellant] must comply with monitoring in a form of electronic monitoring.

17 So far as is presently relevant, s 96 of the Act relevantly provides that an offender who is subject to a supervision order may appeal to this Court against the decision made by a lower court to make the order, or to impose conditions on the order. The appellant has taken advantage of this provision. Hence the present appeal.

18 Three grounds are put forward as the basis of the appeal. The first is that the County Court judge who made the supervision order erred in finding that the appellant posed an unacceptable risk of committing a relevant offence; and her Honour likewise erred in her consequential decision to impose a supervision order on him.

19 The second ground relied upon by the appellant is that, when assessing the level of risk posed by the appellant, the judge erred in taking into account offending which was not 'relevant offending'.

20 The final ground is concerned with the terms of the supervision order. It is that her Honour 'erred in including the following conditions in the supervision order':

(a) a residence condition [additional condition (i)];

(c) a condition restricting the appellant's access to schools and public parks [additional condition (iii)];

(d) a condition restricting the appellant's participation in the activities of clubs and organisations [additional condition (x)];

(e) a condition restricting the appellant's contact with female children between the age of 12 and 16 years [additional condition (xi)];

(f) a condition that the appellant comply with any form of electronic or other monitoring as directed by the Board [additional condition (xiv)];

(g) a condition which empowered the Board to order that the appellant reside in a residential facility [additional condition (xvii)];

(h) a 'condition' that the order continue for a period of five years; and

(i) a 'condition' that the first review of the order be undertaken no later than three years from the date of the order.

21 Although the appeal raises no challenge to the judge's assumption of jurisdiction, it is appropriate to briefly examine the source of the power to make the orders about which complaint is made. A 'relevant offence' is defined by s 3 of the Act as one which is listed in its Schedule 1. The first item in that schedule includes any offence against the Crimes Act 1958 which involves sexual penetration within the meaning of that expression as found in s 35(1) of the Crimes Act. This covers both rape and the sexual penetration of a child under 16; and each of these offences were committed by the appellant on 5 April 2005 (though the second was an alternative to the first). It follows that jurisdiction is established.

22 The schedule goes on to include a wide range of other offences; but all have a common characteristic - they each have a sexual element. Because the property damage, and the threat to kill, of which the appellant was convicted on 4 September 2009, were not crimes with a sexual element, they therefore were not relevant offences for the purposes of the Act.

23 It is appropriate to now deal with each ground in turn.

24 The first question raised by the first ground is whether the judge who made the order erred in finding that the appellant posed an unacceptable risk of committing a relevant offence; and whether, in any event, a supervision order should have been imposed.

25 The answer to this question must be one which gives effect to the purposes of the Act. The first of these, which as s 1 discloses is the 'main purpose', is 'to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision.' The 'secondary purpose' is to 'facilitate the treatment and rehabilitation of such offenders'.

26 Where an unacceptable risk has been found to exist, and the court has determined that a supervision order should be made, the court must impose the core conditions to which reference is made in s 16; and it may, pursuant to s 17, impose other conditions as well. As specified by s 15(3), the primary purpose of these 'is to reduce the risk of reoffending by the offender.' Their secondary purpose, as expressed in s 15(4), 'is to provide for the reasonable concerns of the victim or victims ... in relation to their own safety and welfare.' A direct link to the purposes of the legislation as set out in s 1 is to be found in s 15(5), which provides that, '[i]n order to reduce the risk of re-offending ... the conditions may promote the rehabilitation and treatment of the offender.'

27 Section 9 of the Act is pivotal. It provides, by sub-s (1), that '[t]he court may make a supervision order in respect of an eligible offender only if the court is satisfied that the offender poses an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community' (as opposed to being in lawful detention).

28 On the hearing of the application for a supervision order, the court may of course conclude (or fail to conclude) that it has reached the required level of satisfaction; but such satisfaction can only be attained if the court is satisfied by acceptable, cogent evidence, and to a high degree of probability, that the evidence is of sufficient weight to justify the decision.[1]

29 The legislation is explicit in making some evidence relevant. In determining whether or not an eligible offender poses an unacceptable risk, the court must take into account (a) any assessment report or progress report filed by either the offender or the Secretary; (b) any other report made, or evidence given, in relation to the application; and (c) anything else the court considers appropriate.[2] But in undergoing the process of determination, the court must not consider the means of managing the risk or the likely impact of a supervision order on the offender.[3] Moreover, the court may determine that the offender poses an unacceptable risk of committing a relevant offence even if the likelihood that the offender will do so is less than 'more likely than not'.[4]

30 The Secretary has the burden of proving that the offender poses an unacceptable risk of committing a relevant offence;[5] but even if that burden is discharged, the court may in its discretion make no order.[6] On the other hand, of course, if the court does reach the required level of satisfaction, then a supervision order may be made.[7]

31 The legislation confers a discretion upon the judge by whom the application is determined. That discretion, being conferred on the primary judge and not on a court of appeal, will not be interfered with on appeal unless some error of principle has occurred in its exercise. Such an error may not be identifiable in the reasons given by the judge for her or his conclusion, but that conclusion may be so clearly wrong that an error in the application of principle must have occurred. [8]

32 That appears, in effect, to be the foundation upon which the first of the grounds of appeal is based. In his written submissions, the appellant contends that '[t]he Court could not be satisfied in the circumstances that the [appellant] posed an unacceptable risk of committing a relevant offence.'[9]

33 Even so, it would not generally be necessary for a court hearing an appeal from the judge who granted an application of the kind made by the Secretary to examine at length the evidence upon which, at first instance, the success of the application was based. In most circumstances, it would be proper for the appeal court to limit its consideration of the evidence to the extent necessary to determine whether or not there was a basis upon which the decision of the primary judge could be justified (no matter what, were the decision its own, the appeal court would itself have decided).

34 In this case, however, the appeal against the conditions imposed by her Honour requires a more detailed review of the evidence than would generally be either necessary or appropriate. This aspect of the appeal requires a degree of micro-management - albeit to be exercised with caution, and with a recognition that management of this kind is generally best left to the primary judge and the Adult Parole Board.

35 Three reports were generated as a result of the Secretary's application. The author of the first of these is a forensic psychologist, to whom I shall refer as Assessor A. Her report is dated 22 September 2010. The second report, which is dated 26 November 2010, was written by Assessor B, a Forensic Psychologist and a member of the APS College of Forensic Psychologists. The author of the third report, which was written on 20 February 2011, is Assessor C, a senior consultant psychiatrist associated with the Victorian Institute of Forensic Mental Health.

36 In his written submissions, the appellant summarises the position which, he argues, should be reached as a result of a consideration of these reports. He accepts: (i) that he is an 'eligible offender' under s 4 of the Act, in that when the order was made he was over the age of 18; (ii) that he has been the subject of a custodial sentence; and (iii) that at the time the application for a supervision order was made, he was in custody for a relevant offence (in his case, rape). He nevertheless asserts that, while his 'offending ... was clearly serious ... and there was evidence that [he] may re-offend in some way, ... there was an absence of cogent, acceptable evidence to satisfy the Court to a high degree of probability that the risk of him committing a relevant offence was unacceptable.'[10]

37 In her report, Assessor A recorded that she had conferred with the appellant in Port Phillip Prison for approximately three hours on 3 September 2010. During that assessment, the appellant recalled that, before committing the 5 April 2005 offences, he fantasised about raping a woman; but he went on to describe himself as being intoxicated when the fantasy became the real thing. He appeared to Assessor A to have difficulties with aggression, and little insight into the strategies he needed to contain his aggressive behaviour. He also told the psychologist that he was using marijuana at the time of the offences, and indeed had been abusing both marijuana and alcohol on a daily basis since about the age of 12. He also told her that, when he was approximately 14 years old, he began purposefully viewing videos with scenes of violence, including rape. Assessor A further recorded that the appellant 'is reported to have indicated that he enjoyed inflicting and receiving pain since he was 13 years old'[11] and to have had 'fantasies of harming others and, during his early pubescent years, he appears to have incorporated sexual themes into those fantasies.'[12]

38 The appellant informed Assessor A that, while in prison, he declined to participate in educational or self-development programs. On the other hand, he was interested in those programs which were offence-specific; and in a report written by a lead community corrections officer (to which report Assessor A refers in her own) the appellant was described as immature but also as having demonstrated developing maturity during his imprisonment.[13] In summarising the position on this point, Assessor A concluded that '[g]iven [the appellant's] developing maturity and perceived insight into his offending, it is possible that he has developed sufficient internal skills to monitor and control sexual fantasies of a violent nature.'[14] She added that: 'It does appear that [he] felt that he has put great energy into containing his behaviour (angry outbursts and impulsive behaviours) and when he has not been successful, he has felt guilty and withdrawn from others.'[15]

39 There remain, according to Assessor A, signs which (as I read her report) give some grounds for concern. The appellant 'appears to have no social networks outside of his family, and appears to experience some general social rejection.'[16] Furthermore:

Emotionally [the appellant] presents as immature, appearing to be self-focussed with superficial insight into the impact of his behaviour on others and himself. However there is no evidence to indicate that [his] sexual offending behaviour is motivated by deviant sexual arousal, rather it appears to be the result of impulsive behaviour at times of drug and alcohol abuse which are likely to be used as a form of coping.[17]

40 Under the heading 'General Self Regulation: Negative Emotionality, Impulsivity, Problem Solving and Hostility', Assessor A notes that the appellant's 'sexual offending behaviour appears to be the result of thoughts and fantasies of sexual violence, and a progression from more general thoughts of violence.'[18] Assessor A adds that the appellant 'has significant deficits in coping skills, problem solving and reactive responses to perceived injustices that influence his presentation.'[19] While there 'is no evidence that [he] is preoccupied with sexual behaviour',[20] nevertheless 'controlling his use of alcohol ... will be a source of some concern upon his release from prison'.[21] Moreover, there 'is some evidence that [the appellant] holds [sic] a number of cognitive distortions relating to the perpetration of violence towards others'.[22]

41 Assessor A's conclusions are that the appellant's 'sexual offending appears to be motivated by his negative emotionality and poor coping skills at times of stress and distress, fuelled by drug and alcohol abuse'.[23] Nevertheless, in Assessor A's clinical opinion, his:

... risk of sexual re-offending is represented in the moderate category. While he has been convicted of contact sexual offences, there is no evidence of pervasive sexual offending. The most likely scenario if [he] was to re-offend would be at times of stress, general negative emotionality, alcohol abuse and opportunity. Contributing to falling into the moderate category is the reported positive uptake of treatment goals, and his reported application of relapse prevention strategies including ongoing development of coping skills at times of emotional negativity'.[24]

42 Assessor A recommends that the appellant be supported in his participation in offence specific programs and in addressing his lack of internal psychological resources.

43 The report of Assessor B includes reference to the appellant's less than wholehearted participation in the interview. Indeed, that participation ended somewhat prematurely when the appellant indicated that 'he preferred to spend time in prison rather than in the community under the restriction of supervision, and would deliberately breach his supervision conditions by absconding with the intention of being returned to custody.' By this stage, however, 'the important areas of functioning relevant to the current report had ... been assessed and further discussion seemed unlikely to provide additional useful information'.[25]

44 The appellant told Assessor B that he had 'screwed up' the victim's life, and that he hates himself for it. 'The sense he gave', Assessor B's report continues, 'was one of being deeply ashamed of his behaviour, which he has difficulty coping with effectively and prefers to avoid.'[26] In his interview with Assessor B the appellant described being drunk throughout the day on which the rapes took place, as he commonly was at that period of his life.

45 The reports of both Assessor A and Assessor B indicate that the appellant's childhood and youth were marked by regular outbursts of aggression (being involved on a weekly basis in primary school fights, with fighting continuing throughout his school career) and an extraordinary appetite for alcohol: he was frequently drunk by the beginning of the secondary school day, and continued to drink during school hours. Although the fighting and the drinking went hand in hand, he told Assessor B that there was no connection between what he acknowledged to be feelings of arousal during violent episodes and his desire for sexual intimacy. On the other hand, a sex offenders programs treatment report dated 24 April 2009 is quoted by Assessor B[27] as recording that when the appellant 'would get into a fight he would become aroused and go home to have sex with his girlfriend'; and that, on the day of the rapes, he was 'extremely angry'. He was also angry when he slashed the tyres of the car used by the man with whom the appellant's girlfriend was, as the appellant concluded, having an affair. Yet he told Assessor B that he was not then under the influence of alcohol. Rather, he was in 'complete control';[28] he did not begin drinking that day until after the deed was done.[29] But, according to Corrections Victoria, he subsequently supplemented his tyre-slashing episode with '50 text messages to his ex partner threatening to harm her. ... [He] was under the influence of alcohol at [that] time.'[30]

46 Assessor B refers to material indicating that at the early age of 15 the appellant moved out of the family home. Two reasons are posited. The first is that his parents could no longer tolerate his drunken behaviour. The second, to which reference is made in a report dated 14 December 2005, is that the appellant had been accused of 'inappropriate sexual behaviour ... towards his female siblings'.[31]

47 The allegation of 'inappropriate sexual behaviour ... towards his female siblings' appears to remain no more than that. It is a topic to which Assessor A referred briefly in her report,[32] and which, as Assessor B notes, was raised in a report by Assessor C dated 21 August 2005 (and which Assessor C therefore prepared before the appellant was sentenced for the April 2005 rapes). According to Assessor B, however, the allegation ultimately comes to nothing:

Although there were allegations of sexually inappropriate or sexually assaultive behaviour directed towards his sister in 2003, available evidence does not confirm any specific sexual offending. His index sexual offence is [the appellant's] only recorded sexual violence.[33]

48 Nor, in Assessor B's opinion, is there sufficient evidence to conclude that the appellant 'demonstrates deviant sexual interest or arousal.'[34]

49 Of the appellant's sustained abuse of alcohol, however, there can be no doubt. The effect of this on his mental capacity concerned Assessor B. In his report, however, Assessor B records that, during his interview with the appellant, the latter 'did not demonstrate evidence of active cognitive distortions related to his index sexual offending.'[35] On the other hand:

Individuals with frontal lobe syndrome typically do not show dramatic cognitive deficits on formal mental status testing, and may not have significant deficits in standard intelligence testing.[36]

50 It therefore remains possible that the appellant's 'heavy and prolonged use of alcohol'[37] may have had the consequence that the frontal lobe regions of the appellant's brain are now dysfunctional, producing 'an intellect without social or emotional guidance.'[38] Assessor B quotes from a work entitled Violence, Crime and Mentally Disordered Offenders, which posits that those who suffer from this condition:

... may behave violently, especially under the influence of even small amounts of alcohol or in situations which are mildly irritating. This is due to their lack of control, to their inability to reflect on the consequences of their behaviour, and to their lack of concern for others.[39]

... sufficient clinical evidence is not available to conclude that [the appellant] suffers from damage to any specific area of his brain, nor that his behaviour can be directly attributed to neuropsychological deficits associated with such damage. These possibilities are raised because of concern over his self-reported pattern of unusually heavy alcohol consumption from a relatively early age, his history of repeated blows to the head as a result of his frequent fights, and the similarities of some of his behavioural characteristics to those observed in individuals with such deficits.[40]

52 In Assessor B's opinion, the appellant nevertheless 'appears to remain a relatively immature individual by age-appropriate standards.' Consistently with this, a 'correctional officer familiar with his current daily functioning describes him as typically behaving more as one would expect of a 13 or 14 year old.'[41] The evidence was that, whilst in prison, he participated in and benefited from anger management programs and the like. His subsequent reaction to the realisation that his former partner had become involved with someone else indicated, however, that any progress which he exhibited in these areas was superficial. When faced with an emotionally challenging situation, the newly-won skills deserted him. On this basis, Assessor B concludes that the 'possible longer term effects of alcohol abuse ... [are] therefore seen as a severe problem in his past behaviour, and represents a primary factor of concern for future risk of sexual violence.'[42]

53 It is against this background that Assessor B considered the mechanisms available to psychologists in attempting to predict the likelihood of an identified individual committing a sexual assault in the future. He first had resort to what he referred to as 'actuarial measures', and in particular an assessment tool known as 'Static-99'. Measures of this kind, he reports, 'have demonstrated a statistically significant level of predictive accuracy regarding the risk of sexual re-offending, and consistently out-perform unstructured clinical judgment.'[43]

54 According to Assessor B, the relevant risk in the case of the appellant, assessed on this basis, is 'moderate-high'.[44] Another way of expressing this is to say that there is a 27.3 per cent chance that the appellant will re-offend within 10 years of his release from prison.[45]

55 Assessments of the risk of sexual re-offending are also measured against what Assessor B describes as 'changing emotional, interpersonal and situational variables'.[46] These include the offender's: (i) history of intimate relationships; (ii) generalised attitudes towards the opposite sex; (iii) social networks, and the skill (or its absence) in maintaining both these and the close personal relationships with which they are generally accompanied - and whether they are likely to exert a positive, neutral or negative influence; (iv) impulsivity, if associated with a high likelihood of negative consequences; (v) problem solving skills; (vi) negative emotionality; (vii) sexual drive or preoccupation with sexual thoughts; (viii) deviant sexual interest; (ix) satisfactory employment; and (x) co-operation with supervision.

56 Measured against these ten criteria, the appellant presents (according to Assessor B) as a high risk of becoming a recidivist. He adds, in effect, that, when this high risk is combined with the moderate-high level of static risk as assessed using the Static-99 criteria, the 'overall level of risk for sexual reoffending' is confirmed as moderate to high.[47] It is true that the offending of 5 April 2005 remains an isolated incident. It is also true that the appellant has since acknowledged on multiple occasions that he is responsible for the considerable harm done to the victim. There is nothing to suggest that he now condones sexual violence.

57 On the other hand, the appellant's prospects of future long-term employment are doubtful. So is his capacity to make or implement plans which are 'explicit, stable, reasonable or feasible.'[48] Thus, for example, the appellant:

... continued to report that his sexual offending occurred because of his substance abuse, and believed that alcohol would not be a problem in the future due to his enforced abstinence while in prison.[49]

58 This in Assessor B's opinion is no basis for overcoming a problem which had its source not only in over indulgence in drink, but also in the ten criteria identified in [55] above.

59 Assessor C noted in his August 2005 report that:

There is a suggestion of disordered sexual attitudes. These are apparent in an early and apparently excessive interest in pornography, and an alleged history of him initiating interfamilial sexual abuse. [The appellant's] statements about the index offence demonstrate cognitive distortions, such as the statement that she 'consented' (following a threat). There is not sufficient evidence to support a diagnosis of paraphilia but these aspects of the index offence provide targets for treatment.

60 Disordered sexual attitudes were also mentioned in a report which was exhibited in the proceedings the subject of this appeal. Following an interview with the appellant on 22 April 2009, a sex offender program psychologist noted the appellant's belief that, 'through anger, violence and intimidation [he] could control other people ... and that raping a woman was more acceptable and less violent than physically assaulting her.'[50]

61 Disordered sexual attitudes are one thing. Sexual deviance is sometimes another. Assessor B found no 'consistent and convincing evidence' of the latter. In his words:

It is always difficult to know exactly what happens in an offender's internal experiences, and [the appellant] has not displayed consistent and convincing evidence in his behaviour that would support a conclusion of enduring sexual deviance. What does present a concern, however, is the apparent emergence of distinctive cognitive and emotional responses at times of emotional arousal or distress, especially when exacerbated by intoxication. At such moments, [the appellant's] thinking appears to become constricted and dichotomous (i.e. black or white, all-or-none decisions that leave little room for consideration of alternatives or concern for consequences). Such thinking is seen as contributing directly to both his index sexual offending and his subsequent violent offending.[51]

62 As I read each of the three reports in question in this appeal, the assessment of the risk that the appellant will commit a further relevant offence should, it seems to me, be seen as a two-stage process. Assessor B described that risk as 'low' when the appellant 'is not in a state of emotional arousal or distress, and when he is not impaired through intoxication'. It is quite different when he 'is distressed or experiencing strong negative emotions, especially when he is also intoxicated.'[52] In assessing the over-all risk of relevant reoffending, it is therefore necessary to assess the risk of the appellant experiencing strong negative emotions, or becoming intoxicated, or being subject to both conditions. One must then assess the risk of his reoffending in those circumstances.

63 In his report of 20 February 2011, Assessor C emphasises that 'prediction of reoffending is imprecise and there is a significant rate of false positive and false negative results.'[53] Like Assessor B, he notes that there is no evidence that the appellant is a sexual deviant, though disordered sexual attitudes are present. Again like Assessor B, Assessor C also believes that the appellant has problems with both intimate and non-intimate relationships, with employment and with alcohol. He differs from Assessor B in concluding that the appellant 'shows no evidence of problems with planning or problems with supervision [and only] ... partial evidence of problems with treatment'.[54] Each of Assessor A, Assessor B and Assessor C accept that, in Assessor C's words, a 'possible offending scenario would involve [the appellant], possibly with depression or significant stress as in a tenuous relationship, becoming intoxicated and engaging in violence with a sexual element.'[55]

64 Assessor C's ultimate conclusion differs from that of Assessor B, but co-incides with that of Assessor A. Assessor C 'would regard [the appellant's] risk of sexual reoffending as moderate.'[56]

65 The question which must now be directly confronted is whether, on the basis of this evidence, there is any error in principle in her Honour's conclusion that the appellant posed an unacceptable risk of committing a relevant offence if a supervision order is not made; and, given that he did pose such a risk, that a supervision order should be made notwithstanding the residual discretion to decline to make it.

66 In considering this question, it must be remembered that the Act requires less than that the court be satisfied to a high degree of probability that the offender will commit a relevant offence if a supervision order is not made. What is required is that the court be satisfied by acceptable, cogent evidence and to a high degree of probability that the offender poses an unacceptable risk that he or she will commit a relevant offence if a supervision order is not made. Whether the risk is acceptable or not will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does. If (as must be contemplated here) the risk is that the offender will, while threatening the victim with a knife, commit a rape by unprotected penile penetration, accompanied by ejaculation inside the victim, then satisfaction that the risk is unacceptable will be reached according to a different (and lower) standard than that required if the risk is of a less grave form of sexual offending.

67 The appellant has a history of alcohol abuse, is immature for his age, and has had problems in establishing positive intimate and non-intimate relationships. His prospects of long-term and satisfactory employment are currently more limited than for many others, though this may change. There is a very real likelihood that these problems will in the future become acute; and when that happens, there is a very real likelihood that further relevant offending will occur. In these circumstances, her Honour was in my opinion amply justified in concluding that she had before her acceptable, cogent evidence pointing with a high degree of probability to the conclusion that 'that there is an unacceptable risk of the [appellant] committing relevant further offences unless a supervision order is made.'[57]

68 Having reached that conclusion, the residual discretion remained: her Honour might, in the exercise of that discretion, and despite her conclusion about the appellant posing an unacceptable risk, have declined to make a supervision order. But the judge's decision to eschew that course was in my opinion open to her. There is, accordingly, no basis upon which this Court can interfere.

70 In the written reasons given by her Honour for her decision to order that the appellant be subject to a supervision order, the judge said:

The point that needs to be made ... is that within six months of the [appellant's] release on parole and notwithstanding his involvement in programs to address anger management and drug and alcohol problems, the [appellant] responded with violence to the stressors to which he was exposed in the context of his relationship with a girlfriend and, with the added disinhibiting effect produced by his relapse into abusing alcohol, this included threats to harm this woman.[58]

71 Her Honour here clearly took into account offending which was not 'relevant offending' within the meaning of that expression in the Act. Equally clearly, she was entitled to do so. Section 9(3) provides that the court must take into account anything that the court thinks appropriate. Nothing in the legislation excepts from this provision an act of violence simply because such an act does not constitute a 'relevant offence': if the violence in question, albeit not itself part of a 'relevant offence', bears upon the probability of the offender posing an unacceptable risk that he or she will in the future commit a relevant offence, then the court has a duty to take that circumstance into account. The fact that whilst on parole the appellant offended, and offended in the way that he did, was not merely appropriate for her Honour's consideration. It was essential to it. Had she ignored it, she would have failed to take a relevant consideration into account.

72 For reasons which are certainly unexplained, and perhaps inexplicable, the appellant in his written case does not refer to paragraph [64] of her Honour's reasons. Yet it is that paragraph which gives rise to the second ground of appeal; it is, in other words, the paragraph in which (in the words of the written case) 'when assessing the level of risk posed by the [appellant]' the judge took into account the 'offending which was not a relevant offending'. The entirety of that portion of the written case which deals with the second ground of appeal reads as follows:

[29] In relation to the [appellant's] offending, the learned judge stated: 'where, as in this case, the [appellant] has previously said that sexual assault is a more acceptable and a less violent means of assaulting a female, I was not satisfied that threats of harm made against a woman, with or without any explicit sexual context, are properly characterised only as threats of non-sexual violence'.

[30] It is submitted that this finding is in error. The Act clearly sets out which offences are to be regarded as relevant offences for the purposes of assessing the risk posed by an offender. The [appellant]'s re-offending is not included.

73 It may well be that the threats made by the appellant to his former partner immediately after the affair of the slashed tyres contained no element of threatened sexual violence. He was charged with, and convicted of, making a threat to kill. If there was no explicit threat of sexual violence, it may have been incorrect of her Honour to speculate about a possible underlying implication that the appellant would or might resort to that species of criminal behaviour. But that does not meet the point that the judge was entitled - when answering the question whether there is a high degree of probability that the offender poses an unacceptable risk that he or she will commit a relevant offence if a supervision order is not made - to take into account the appellant's breach of his parole. She was clearly so entitled.

75 The third ground of appeal is that the judge erred in including certain conditions in the supervision order. This ground can only succeed if the judge made an error of principle in the exercise of her discretion to impose the impugned conditions, or any of them, in addition to the core conditions; and such an error would be made were the additional conditions, about which the appellant complains, imposed for an improper purpose, or are clearly inimical to a proper purpose, or if they constitute more than that minimum interference with the appellant's liberty, privacy or freedom of movement which is necessary to ensure that effect is given to the purposes for which additional conditions may be imposed. Error would also be shown were the conditions not reasonably related to the gravity of the risk of the appellant's reoffending. In fairness to both the appellant and those whose task it is to ensure his compliance, they must also contain as little ambiguity as possible. Almost any ambiguity would at the least enliven the discretion to decline to impose the condition in question. In many instances ambiguity would, as a matter of principle, dictate that a condition containing that ambiguity not be imposed.

76 The first impugned condition - additional condition (i) - is that the appellant reside at a specified address in Traralgon, or where otherwise directed by the Adult Parole Board. The appellant submits that, because it 'is not related to the [appellant's] risk of reoffending', a restriction on his 'freedom to select his own residence [is] an unreasonable limitation on his liberty, privacy and freedom of movement.'[59]

77 If the purposes of the Act are to be advanced, it is very important that the appellant not associate with persons who are likely to have a negative impact upon his ability to avoid situations of risk. On the other hand, he has a life to live; and, amongst other things, that entails taking responsibility for what he does, and who he is, and with whom he associates. No multitude of supervisory conditions, no matter how carefully drawn, will perfectly balance risk against freedom; the liberty to make one's own friends and the risk that those friends will not match the perfect template.

78 So while the balance will never be perfectly struck, it is important that obvious dangers be avoided where possible. The risk of the appellant associating with those who will have a negative impact upon his behaviour is most likely to arise - and arise in very adverse circumstances - should the appellant chose to live in premises in which such persons also reside. For this reason alone a condition that the appellant reside at a specified address, or at an alternative address approved by the Board, is not, in my opinion, an unreasonable limitation on either his liberty or his freedom of movement. At least that is so if the condition is administered reasonably by the Board. It is a condition which is likely to reduce the risk of reoffending. Moreover, it meets other important criteria. First, it allows the court or the Board to ensure so far as possible that the designated address is not one which will bring the appellant into contact with the victim, or with her relations or friends - a significant consideration when, for example, victim and offender live in the same provincial city. And, secondly, it is unambiguous.

79 In my opinion, additional condition (i) is appropriate, and should be retained.

80 Additional condition (ii) is that the appellant be present at his prescribed place of residence between 10.00pm and 7.00am unless the Adult Parole Board directs otherwise. Her Honour imposed this condition because 'amongst other things, [it] facilitates the core supervisory conditions, it supports other discretionary conditions and it meets the requirements of s 15.'[60]

81 The core conditions prescribed by s 16 of the Act are set out at [12] above. With one exception, nothing in the evidence available to the Court on this appeal suggests that they are in any way relevantly connect with, dependent upon, or will be facilitated by, the appellant being present at his prescribed residence for nine hours each night. Core condition (b), for example, is that the offender attend at any place as directed by the Board for the purposes of administering the conditions of the order; but there is nothing before this Court to indicate that such attendance is advanced by, let alone dependent upon, the appellant being at his prescribed place of residence during the night. A similar observation might be made about the remaining core conditions, except that which forbids his leaving Victoria without the Board's permission. None of the others are 'facilitated' by the curfew.

82 The core conditions are one thing. The question remains whether the imposition of a curfew would 'facilitate' any of the additional conditions set by her Honour in the exercise of her discretion. There are two upon which reliance is placed by the Secretary as being 'supported' by the curfew. These are, first, that the appellant abstain from the consumption of alcohol except when given permission otherwise by the Board - additional condition (vii); and, secondly, that the appellant not use prohibited drugs - additional condition (viii). In the submission of the Secretary, the curfew supports these discretionary conditions by providing 'some boundaries and structure around the high risk times for substance abuse.' Moreover, sufficient flexibility in an otherwise inflexible regime is provided because the Board has power to vary the hours during which the curfew is operative.[61]

83 In my opinion the imposition of a curfew which operates from 10.00pm to 7.00am is in this case an error of principle. It offends the strictures of s 15(6), which in effect require that any conditions constitute (within the framework of the legislation) the minimum interference with the offender's liberty or freedom of movement. The curfew extends that interference beyond the minimum. It is also a restriction which is in its width disproportionate to its likely reduction of the risk that the appellant will offend; and it may hinder, rather than promote, his rehabilitation.

84 These criticisms can be illustrated in part by a consideration of the difficulty of the Board being able to attend satisfactorily to perhaps frequent requests for permission to attend functions or engage in activities from which the appellant might gain considerable advantage: he might be on afternoon shift, and wish to work overtime, or go to places of wholesome evening entertainment (the theatre is but one obvious example; gatherings of people his age, with whom he must increase his social skills, is another), or attend evening meetings designed to assist persons - such as him - with such matters as employment, or management of time, or human relations or the like.

85 The appellant ought not to have to seek the permission of the Board on every occasion his attendance at such events might keep him away from home until after 10pm; and the Board ought not to have to go to the trouble of working out whether or not permission should be granted. The applications for permission may have to be made well in advance, if the Board is to evaluate them before deciding to accept or decline. These considerations may well mean that the flexibility which the role of the Board is intended to produce cannot as a matter of practicality be achieved.

86 It must also be remembered that the appellant is but 24 years old, and immature for his age. He needs to increase his social skills. In particular he needs to learn how to interact with females with respect, with mature confidence, and with the capacity to manage his emotions. An appropriate means of his gaining this experience would be his attendance at well-managed, drug free venues open to people of his age of both sexes. A 10pm curfew would inhibit this.

87 I accept that some night clubs and like premises are not the kind of venue that would assist the appellant in the ways I have in mind. He must avoid them. But if, as required by other conditions, he is sober and drug-free, potential victims are no more likely to be in danger in, say, a well-run night club, as they would be on the street. Moreover, it is notorious that problems at night clubs and the like occur most frequently after 1.00am. If the appellant is required to be at home by that hour, and if the prohibition on alcohol and drugs is honoured by him and his abstinence appropriately checked, then in my opinion the primary purpose of the conditions - to reduce the risk of the appellant's re-offending, while limiting his freedom as little as possible - will be most likely to be achieved. By contrast, the practical effect of the present curfew may be to stultify the appellant's development.

88 It might be argued that it is at night that the appellant will be most vulnerable to the internal forces which contributed to his offending in the first place. It is then that he is most likely to be affected by alcohol or other drugs. But additional conditions which are not the subject of this appeal - additional conditions (vii) and (viii) - are conditions by which the appellant will continue to be bound. The Court expects them to be obeyed, and enforced. If the appellant is minded to drink or use illegal drugs, a condition that he remain at his residence is not likely to be obeyed either. More importantly, if he is minded to disobey these injunctions, a curfew, even if kept, will not stand in his way.

89 The evidence is that the appellant is most in danger of reoffending when alone with a female of about his age while being drunk and while under emotional or other stress. Requiring him to be home by 10.00pm will do little to diminish that risk, especially if a female is with him.

90 I would, for these reasons, amend the hours during which the curfew is to operate. I would order that the appellant be present at the prescribed place of residence between 1.00am and 7.00am. To achieve this purpose, the Court should order that in additional condition (ii) the expression '10.00pm' be deleted and the expression '1.00am' be substituted for it.

91 The appellant is presently prohibited from visiting school premises and public parks between 4.00pm and 8.00am without the permission of the Board: additional condition (iii). These restrictions may go some short distance towards the prevention of further offending; but they also constitute, in my opinion, more than the minimum interference with the appellant's liberty and freedom of movement that is necessary to give effect to the conditions, and more than is reasonably related to the gravity of the risk that the appellant will re-offend. It may be that the appellant will not suffer particular hardship if he cannot visit schools, but equally there is no reason to think that the risk of his commission of a relevant offence will be reduced if such visits are forbidden during specified hours. The link between a school and the subject rapes was entirely incidental. If the appellant is minded to re-offend, the prohibition on school visits will not constitute a barrier; he will simply wait in the street, something which he is presently free to do.

92 Parks were included in the prohibition because of the fear that potential victims are likely to be found there. But in my opinion the prohibition of the appellant's attendance at these places of recreation and leisure will impose upon him a hardship which bears no relationship to the protection it will afford potential victims. Summer evenings in public parks potentially offer the appellant the opportunity to engage in reformative social interaction. The risk he might pose there to members of the public would in general be no greater than the risk he would pose by his mere presence on the street.

93 There may also be a problem with the meaning of the expression 'public park'. It may or may not include a national or state park, or a public beach, or a mere public playground or open space without any surrounding park. There may be many areas, especially in and around a provincial city or large town, the status of which as public open space is quite unclear. Neither those who must obey, nor those whose duty it is to enforce, conditions of the kind under discussion here, should be required to compete with ambiguity unless, in a condition of crucial importance, some ambiguity is unavoidable.

94 I would for these reasons delete additional condition (iii).

95 The next additional condition subject to appeal is that which restricts the appellant's membership of, affiliation with, or participation in the activities of, clubs and organisations in respect of which there are reasonable grounds for believing female children aged between 12 and 16 might also be in attendance: additional condition (x).

96 The rationale for this condition is that it will reduce the appellant's contact with members of the potential victim group. All the evidence, however, is that potential victims are likely to be 'age appropriate' - that is, of an age commensurate with that of the appellant. This might, but probably would not, include females as young as 16. Even so, the nominated age range of 12-16 is not commensurate with the cohort of persons nominally at risk. Not only this but, unless he had the permission of the Board, the condition would prevent the appellant's attendance at any publicly significant sporting event, or many insignificant (but personally important) ones, or almost any religious ceremony, or any cinema or theatre that is not exclusively for adults. So he could attend a club devoted to table-top dancing, but not a church - or a cinema showing a family film.

97 In my opinion, this condition offends the legislative stricture that it constitute no more than that minimum interference with the appellant's liberty as is necessary to give effect to the relevant purposes. It is in its breadth disproportionate to the benefit which it could reasonably be expected to realise; and it is not realistic to answer that its effect may be ameliorated by the Board. I would therefore delete additional condition (x).

98 I would also delete the condition that the appellant not, without the prior written consent of the Board, have supervised or unsupervised contact with female children aged between 12 and 16 years, save for interaction with female members of his family, and interaction which is unable to be avoided in the course of his lawful daily activities: additional condition (xi).

99 Almost any condition the limits of which cannot readily be ascertained is at least potentially one which interferes more than minimally with an offender's liberty. What is meant by 'contact'? And the scope of the expression 'unable to be avoided in the course of his lawful daily activities' is also uncertain. In particular, what is able or unable to be avoided in a given set of circumstances might be very difficult for the appellant to assess. Must he, for example, remove himself from any gathering once a female of the designated age joins the group? The gathering might be one at which he was not only perfectly welcome, but indeed one at which his attendance was requested or even required. The difficulty and embarrassment involved in the appellant's position in these circumstances, especially if the age of the female concerned is not known to him, are easy to imagine.

100 This condition is in my opinion not only ambiguous but - no matter how construed - disproportionately wide. In short, on any view of its width, that width bears no relationship to the protection it will afford potential victims. It does not, therefore, constitute the minimum interference with the appellant's liberty that is necessary to give effect to the purposes of the conditions; and it is not reasonably related to the gravity of the risk of the appellant's re-offending. It should be deleted.

101 The appellant objects to additional condition (xiv) - that the appellant comply with any form of electronic monitoring or any form of monitoring as directed by the Board - because, he submits, its purpose is 'to ensure compliance with a curfew', and accordingly it 'cannot be justified for the same reasons as the curfew should not have been imposed.'[62]

102 In her reasons for her order, the judge referred to evidence given on behalf of the Secretary to the effect that 'any passive electronic monitoring would help avoid the more intrusive activity of, for instance, telephone monitoring at night to supervise compliance with the curfew condition. It would also act to notify Corrections should there be breach of the curfew.'[63] Her Honour continued:

In this application having considered this, I was satisfied that the proposed monitoring condition is appropriate because, amongst other things, it facilitates the core supervisory conditions, it supports the operation of other discretionary conditions and it meets the requirements of s 15 of the Act.[64]

103 I agree. If a curfew, albeit a modified one, is to be imposed, appropriate monitoring of compliance is important. In my opinion, this condition should be retained.

104 The next condition to which objection is taken is additional condition (xvii), which authorises the Board to direct the appellant to reside in a residential facility within the meaning of the Act. It is contended for the appellant that he might, pursuant to this condition, be required to reside in a facility identified by Assessor C as Corella Place. In Assessor C's opinion, the appellant:

... is likely to deteriorate in mental state in this situation and such placement would curtail any opportunity for him to develop employment or prosocial activity in the community. In addition, this is unlikely to permit him to develop further maturity and coping skills and might instead result in demoralisation and a return to his earlier truculence in prison. In my opinion this would be of profoundly negative impact to [the appellant].[65]

105 The judge nevertheless justified this condition on the basis that it:

... would allow the Adult Parole Board an opportunity to place the [appellant] in a residential facility should his residential circumstances become unstable and it would also allow the [appellant] to seek placement in a facility if this becomes necessary. Apparently there have been cases in the past where sex offenders have sought periods of respite in a residential facility.[66]

106 Her Honour added that, in coming to any decision pursuant to this condition, the Board would be required by s 20(2) of the Act to ensure that the appellant's liberty, privacy and freedom of movement were minimally interfered with, that the purposes of the conditions were advanced, and that any residential requirements were reasonably related to the gravity of the appellant's offending. This was a reassurance that proper account would be taken of his interests.

107 In my opinion, additional condition (xvii) is justified. Its potential benefits are clear, and the objection to Corella Place as articulated by Assessor C, if relevant at all, has at this point purely theoretical foundations. Doubtless the Board, before exercising its responsibilities under this condition, would take Assessor C's reservations into account.

108 The appellant submits that he should not be subject to supervision for as long as five years, and that the first review should be held earlier than within three years. I disagree with the first submission, but accept the second. The gravity of the original offending - two brutal rapes - and the appellant's immaturity indicate the appropriateness of a five year period during which he is under supervision. And, as Assessor B pointed out, the effects on the appellant's cognitive functioning of his prolonged abuse of alcohol, because they are not yet susceptible of full assessment 'represent a primary factor of concern for future risk of sexual violence.'[67] More may well be known after five years of abstinence.

109 But it is important that the conditions of that supervision achieve the purposes of the Act while constituting the minimum interference with his liberty, privacy or freedom of movement. As circumstances change, so may the conditions require amendment if the legislatively-prescribed ends are to be achieved. In my opinion, the conditions should be reviewed after two years.

[8] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[9] Written case for the appellant, [28].

[10] Written case for the appellant, 29 April 2011 [15].

[11] Report of Assessor A, 22 September 2010 [15].

[25] Report of Assessor B, 26 November 2010, [2].

[30] As quoted by Assessor B, ibid [16].

[32] Report of Assessor A, 22 September 2010, [49].

[33] Report of Assessor B, 26 November 2010, [96].

[50] As quoted by the judge in her Honour's reasons for order, 4 April 2011, [46].

[51] Report of Assessor B, 26 November 2010, [125].

[53] Report of Assessor C, 20 February 2011, [47].

[56] Report of Assessor C, 20 February 2011, [57].

[57] Reasons for order, 4 April 2011, [74].

[59] Written case for the appellant, 29 April 2011 [32].

[60] Reasons for order, 4 April 2011, [103].

[61] Written case for the respondent, 8 June 2011 [27].

[62] Written case for the appellant, 29 April 2011 [46].

[63] Reasons for order, 4 April 2011, [118].

[65] Report of Assessor C, 20 February 2011, [73].

[66] Reasons for order, 4 April 2011, [123].

[67] Report of Assessor B, 26 November 2010, [111].