Re MTE (No 4) [2021] VSC 622 (17 September 2021)

1 MTE[1] was released from prison on 27 January 2020, after serving a sentence of 23 years for murder. On 24 January 2020, MTE was placed on an interim supervision order by Champion J of this Court. He was then placed on a final supervision order ('the Order') on 21 May 2020, also by Champion J, for a period of four years, with a periodic review to occur in two years from that time.[2]

2 In June 2021, MTE applied to this Court for a review of a condition of the Order, pursuant to s 110 of the Act. If leave is granted, MTE seeks that the electronic location monitoring condition, being condition 7.8 on the Order ('the contested condition') be removed, insofar as it requires the applicant's location to be monitored by a GPS ankle bracelet. Initially, the Secretary opposed the application. Both parties filed written materials in support of their respective positions, which I read carefully before the hearing.[3] The applicant's materials included a helpful chronology of events.

3 I heard MTE's application on 14 September 2021. MTE's counsel, Mr de Vietri, made comprehensive submissions in support of MTE's application. Mr de Vietri also tendered some further useful documents, including a set of photos of the GPS monitoring device itself,[4] and two letters that gave further details about MTE's current housing arrangements.[5]

4 At the conclusion of Mr de Vietri's submissions, I indicated to the parties that, whilst I had not yet heard from the Secretary, I found many of the arguments in favour of the application persuasive. I then invited the Secretary's submissions and evidence. At that stage, Ms Flynn QC, for the Secretary, sought some time so that further discussions could be had. The matter was adjourned to 17 September 2021. On 16 September 2021, the solicitor for the Secretary advised the Court by email that the parties had reached agreement. The parties provided draft proposed orders to the Court on 17 September 2021. The draft proposed Order contained an amended monitoring condition, removing the requirement for electronic monitoring, and replacing it with telephone monitoring, as I will detail further below.

5 The parties reconvened before me on 17 September 2021. I indicated that day, in view of the consent position and the material and submissions before me, that I was satisfied it was in the interests of justice to grant leave for this application to proceed. I also indicated that I would exercise my powers under s 111(3) of the Act and vary the Order in accordance with the proposed draft Order, being to vary the electronic monitoring condition,[6] to remove the requirement for electronic monitoring. The new condition provides for MTE to be monitored via telephone. The residence condition is also varied to update MTE's address.

6 I am satisfied that the variations are in accordance with s 15 and Division 3 of Part 3 of the Act. In particular, I consider the varied conditions represent the minimum interference to MTE's liberty and freedom of movement that is necessary to fulfil the purposes of the conditions and the varied conditions are reasonably related to the gravity of MTE's risk of re-offending. I indicated on 17 September 2021 that I would provide more detailed written reasons for my decision. These are those reasons.[7]

7 The circumstances of MTE's index offending are set out in detail in Champion J's ruling in relation to the interim supervision order.[8] MTE was a young man at the time of the index offence. He pleaded guilty to murder and was ultimately sentenced to 23 years imprisonment with a non-parole period of 17 years.

8 MTE was granted parole in June 2015, which was cancelled after two months due to his cannabis use and poor compliance with urinalysis. MTE returned to custody to serve out his sentence.

9 I refer to and adopt Champion J's summary of MTE's personal circumstances, and the procedural history of these matters that are set out in his Honour's ruling regarding the Order.[9]

10 MTE did not object to the interim supervision order being made. However, he contested the proposed electronic alcohol monitoring and alcohol abstinence conditions on the interim application.[10] His Honour Champion J declined to impose an electronic alcohol monitoring condition on the interim order, finding that the balance of the conditions (including electronic monitoring) would be sufficient to ameliorate MTE's risk to an acceptable level.[11]

11 On the subsequent application for the Order, MTE again did not oppose the making of an order, but contested the imposition of certain conditions, including electronic monitoring. On determining the application for the Order, his Honour determined it was necessary to impose an electronic monitoring condition for the following reasons:

In the present matter, the respondent does not object to the proposed residence and curfew conditions. Unfortunately, however, the respondent does have a past history of itineracy, including periods of homelessness, albeit this was some considerable time ago. Both Dr Godfredson and Dr Pandurangi opined that unstable accommodation. and association with antisocial peers are factors that may increase his risk of re-offending. In regard to the latter, I note the respondent is likely to associate with persons with whom he has shared a custodial setting. I also take into account his description of the device as a means to confirm his whereabouts at any given time. Dr Godfredson also noted that it would assist him from being subject to unnecessary scrutiny.

Having regard to the expert evidence, and taking into account that the respondent currently has stable accommodation, I am nevertheless satisfied that, as in IK and Toller, the imposition of the electronic monitoring condition is appropriate to monitor compliance with the residence and curfew conditions, and to act as a control and rehabilitative aid so that the respondent does not return to an itinerant lifestyle.

I have taken into account the evidence regarding occasions where the device has caused physical inconvenience and irritation. However, I am satisfied that these issues can be satisfactorily managed by the PSA.[12]

12 By way of background, the contested condition required MTE to wear a GPS tracking bracelet 24 hours per day. The contested condition allowed the Post Sentence Authority ('PSA') to remove the GPS tracking bracelet.

13 The varied condition as agreed between the parties reads as follows:

[MTE] must comply with monitoring in the form of telephone calls by a Community Corrections Officer and/or Corrections Victoria Electronic Monitoring Centre Operator and any other form of monitoring as to whereabouts (excluding electronic monitoring) as directed by the Post Sentence Authority.

14 Section 1 of the Act provides, in part, as follows:

Purposes

The purposes of this Act are -

(a) primarily, to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision; and

(b) secondly, to facilitate the treatment and rehabilitation of those offenders; [...]

15 Section 110 of the Act provides that, at any time, the offender (or indeed, the Secretary) may, with leave of the Court, apply to the Court for a review of any condition of a supervision order, other than a core condition.

16 Section s 110(3) sets out the test for granting leave, and provides the Court may grant leave if:

(a) new facts or circumstances have arisen since the conditions were made that would justify the review; or

(b) it would generally be in the interests of justice, having regard to the purposes of the conditions and the manner or effect of their implementation, to review the conditions.

17 Here, the applicant seeks leave of the Court on the basis of s 110(3)(b) above. The respondent does not oppose leave being granted.

18 If the Court does grant leave, its powers on the application for review are set out at s 111(3) as follows:

Power of court on review of conditions

(1) If the court grants leave for an application under section 110, the court must grant the offender, the Authority and the Secretary the opportunity to be heard in respect of the application.

(2) The court must consider any submissions made under subsection (1) and any certificate of available resources.

(3) The court may -

(a) vary, add or remove any conditions of the supervision order; or

(b) confirm the conditions of the supervision order; or

(c) review the supervision order in accordance with this Part.

(4) If the court exercises a power under subsection (3) in respect of a supervision order, the court must ensure that the conditions of the order are in accordance with the requirements of section 15 and Division 3 of Part 3 and make any variations or additions to the conditions that are necessary for this purpose.

(5) Divisions 3 and 4 of Part 3 (with any necessary modifications) apply to the addition or variation of a condition under this section.

19 The Authority is the Post-Sentence Authority ('PSA'). The PSA filed submissions in response to the application.

20 For completeness, s 15 of the Act provides:

Conditions of supervision order

A supervision order is subject to the core conditions set out in section 31 and any other conditions that the court imposes under Division 3.

21 The first section of Division 3 of the Part 3 is section 27, which provides the following guidance in relation to the purposes of conditions of supervision orders:

Purposes of conditions of supervision order

(1) The primary purpose of the conditions of a supervision order is to reduce the risk of the offender re-offending by committing a serious sex offence or a serious violence offence or both or an offence referred to in Schedule 3.

(2) The secondary purpose of the conditions of a supervision order is to provide for the reasonable concerns of the victim or victims of the offender in relation to their own safety and welfare.

(3) In order to reduce the risk of the offender re‑offending, the conditions may -

(a) promote the rehabilitation and treatment of the offender; and

(b) address types of behaviour that may increase the risk of the offender -

(i) committing a serious sex offence or a serious violence offence or both or an offence referred to in Schedule 3; or

(ii) engaging in any behaviour or conduct that threatens the safety of any person (including the offender).

(4) The court must ensure that any conditions of a supervision order (other than the core conditions) -

(a) constitute the minimum interference with the offender's liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions; and

(b) are reasonably related to the gravity of the risk of the offender re-offending.

22 Part 15 of the Act provides for the procedure to be adopted in the event electronic monitoring equipment/devices are to be removed.

23 Section 134 of the Act provides that a person who is a victim of the offender may make a submission to the Court for consideration in relation to an application under Part 8. Ms Flynn confirmed that there are no victims registered in this matter and no there were no victim submissions made.

Applicant's contentions in support of the removal of the contested condition

24 Mr de Vietri relied on the written submissions filed, the expert reports and oral submissions in arguing that the contested condition no longer constituted the minimum interference with MTE's liberty and freedom of movement necessary to ensure the purposes of the conditions and that it was not reasonably related to the gravity of MTE's risk of re-offending. In support of this, Mr de Vietri highlighted in detail MTE's progress and compliance with his Order, that in turn demonstrated how MTE's circumstances had changed since Champion J imposed the Order. Mr de Vietri also detailed the ways in which the GPS tracking bracelet had become a barrier to MTE's ongoing reintegration and rehabilitation.

25 Mr de Vietri submitted that MTE had been making good progress over the past 19 months since his Order was made, having largely complied with all of the conditions of the Order. Notably, there had been no breaches reported, and no warnings issued. Mr de Vietri explained that under his Order, MTE attends weekly supervision meetings with his Specialist Case Manager in the Department of Justice and Community Safety ('DoJCS'). He has attended almost all of those appointments. After hours, MTE's point of contact is a duty director. He also sees his private psychologist Dr Thompson weekly. He has fortnightly meetings with the Forensic Intervention Services. MTE also receives random compliance visits from members of Victoria Police's Supervision Order Specialist Response Unit ('SOSRU').

26 Overall, MTE has maintained good relationships with supervision workers. He had had some difficulty getting along with one of his past Specialist Case Managers, but Mr de Vietri submitted that such issues were to be expected during the course of an Order. This was particularly in view of the regular staffing changes within Corrections Victoria.

27 Mr de Vietri acknowledged that there had been some incidents noted in the case notes regarding MTE. Mr de Vietri submitted that early incidents largely revolved around MTE getting used to the structure of the Order and life in the community, and involved him mixing up the days of his appointments.

28 Mr de Vietri provided details of the more recent incidents that had been noted, including the following:

(a) On 2 March 2020, members of the SOSRU found beer in MTE's fridge. MTE explained he had purchased the beer for his neighbour to thank him for mowing the lawns.

(b) On 15 April 2020, MTE self-disclosed that he had attended a bottle shop to purchase alcohol for his neighbour, which the GPS data confirmed.

(c) On 13 January 2021 due to issues with public transport, MTE was unable to get home before his 11:00pm curfew. MTE phoned the duty director and explained the situation. He requested the duty director stay on the phone for 20 minutes while MTE worked out how to get home. Eventually, MTE decided to walk home. This took some hours, but MTE called the duty director when he arrived home, as required. There have been no other curfew incidents.

(d) On 31 May 2021 MTE self-reported to his case manager another incident where he had bumped into an old friend over the weekend, and had visited that person's home address. MTE disclosed that his associate had smoked cannabis around MTE. MTE complied with requests for a drug screen after that disclosure and the results were clean. GPS data confirmed MTE had visited the address twice during the weekend.

29 Mr de Vietri highlighted that the data from the GPS tracking bracelet had corroborated MTE's own version of events as reported to his supervisors. None of the incidents had been resolved, or discovered as a result of the GPS device or its data.

30 Further, Mr de Vietri explained that MTE had maintained a stable residence since his release from prison, despite some challenges. In February 2021, MTE had to move from his first accommodation after that property was damaged by fire caused by a neighbour. MTE was moved to a second residence, which Corrections Victoria intended as a temporary residence only. MTE subsequently advocated for himself to remain in the second residence rather than moving to a third residence that Corrections Victoria had found for him. MTE identified that he felt settled and comfortable in the new accommodation, and that it is in a quiet, safe street, whereas the proposed permanent accommodation was in a worse neighbourhood with potentially anti-social neighbours. MTE wrote to the PSA to convey his desire to remain in the second residence, highlighting his concerns about the proposed new accommodation. Mr de Vietri submitted MTE's involvement in advocating to remain in his home demonstrates insight into his own risk factors and his needs. Ultimately, MTE was allowed to remain in his preferred accommodation, and recently MTE signed a 12 month lease for that property, further highlighting his accommodation stability.[13] Mr de Vietri also noted that MTE is perhaps too settled at home, preferring to stay in and play video games and care for his pet cat (which he has had since June 2020) rather than go out.

31 Mr de Vietri noted that Champion J's key reason for imposing the electronic monitoring condition was MTE's history of itineracy and homelessness as a teenager, before he was incarcerated for the index offending. Mr de Vietri submitted that in light of the above, homelessness and itineracy are no longer an issue for MTE.

32 Mr de Vietri submitted that the risks MTE presents of re-offending are not location specific. This is in contrast to serial child sex offenders, whose risk of re-offending might reasonably be thought to be connected to attendance at schools, or parks. There is no causal connection between MTE's location and his re-offending. Further, MTE has not expressed any desire to leave the jurisdiction. Mr de Vietri acknowledged that important issues for reducing MTE's risks were keeping him away from associates who could have a negative influence, and keeping him engaged with pro-social supports, though neither of those are location specific.

33 Conversely, Mr de Vietri submitted that the GPS device had had a negative impact on MTE. Early on in the Order, the device was itself causing irritation and abrasions on MTE's ankle. Those issues were resolved. Further, MTE was receiving lots of SMS alerts regarding the device needing to be charged, which was also causing him anxiety. Those issues were also resolved with a new device being fitted in July 2021. Still, Mr de Vietri submitted that the device itself caused MTE great anxiety, and because of that, it was a barrier to MTE's successful rehabilitation and reintegration. He relied on the expert reports of Dr Martiza Thompson (MTE's treating psychologist) and Dr Prashant Pandurangi (MTE's treating psychiatrist) in support of that submission.[14]

34 Dr Thompson has been working with MTE since September 2020. In that time, they have worked on his complex post-traumatic stress disorder symptoms and triggers. Dr Thompson considered MTE was making progress and is participating well in their sessions. Dr Thompson opined that the GPS tracking bracelet itself had become a trigger for intrusive, negative thoughts for MTE. The alerts from the GPS bracelet made him anxious and reminded him of his criminal act and his constant surveillance. That in turn resulted in negative thoughts about his past trauma (which, as Dr Thompson highlights, is linked to his offending, given the role his traumatic past played in his offending behaviour.) MTE reported to Dr Thompson that the bracelet made him feel like he is a bad person, a criminal, and that he will never be able to feel free.

35 Dr Thompson also considered that the bracelet was contributing to MTE's avoidance of interaction with others. His avoidance behaviour is a symptom of his complex PTSD diagnosis. He had become fearful of encountering people he was in prison with and so sometimes avoided social settings. In addition to this, he felt ashamed of the bracelet, and tried to hide it, because he associated it with high-risk recidivist offenders.[15] MTE expressed to Dr Thompson that he wants others to believe that he is not a risk, and he wants to prove his worth. Dr Thompson opined that given this, because part of MTE's integration into society includes him being exposed to new and common activities, the bracelet had become somewhat of a barrier to that integration and trust-building. She concluded that from a psychological perspective the electronic monitoring bracelet was not helpful for MTE's mental health, and reintegration into society,

36 Dr Pandrangi diagnosed MTE with a severe personality disorder. Dr Pandurangi confirmed in his report that MTE perceived the bracelet as a barrier for his integration into the community because it exacerbated his anxiety and reminded him of past trauma. Dr Pandrangi said that the restrictions of the Order, including electronic monitoring would assist if they were necessary to manage MTE's risk and not entirely perceived as a mechanism of control or a barrier for re-integration into the community.[16] However, he noted that the electronic monitoring condition was a legal mechanism, and not one that he could give an opinion on.

37 Mr de Vietri noted for the Court's assistance that electronic monitoring conditions are discretionary, rather than core conditions under the Act. He also noted that the Act is prescriptive about the terms of an electronic monitoring condition. Under s 35 of the Act, if the Court imposes an electronic monitoring condition, specific conditions must follow, which include the fitting of an electronic monitoring device that must be worn 24 hours a day. As such, if electronic monitoring were a condition of MTE's Order, it would require MTE to wear a device, he could not simply carry the device at certain times.

38 Mr de Vietri concluded that MTE was a good candidate for a gradual stepping down of his most restrictive conditions. MTE's progress on his order and his openness with his supervisors demonstrated that he can be trustworthy, and that he takes the conditions of his Order seriously, undermining the need for the contested condition. Removing the electronic monitoring condition at this stage would give MTE hope that there is an end to this process, and would assist him to build the trust in the community that he so desires, in order to reintegrate successfully into the community.

39 Mr de Vietri confirmed MTE was amenable to monitoring through other means, such as by telephone. Ultimately, telephone monitoring is what the parties agreed on as a suitable alternative to electronic monitoring.

40 I note the respondent's contentions contained in the paperwork filed in opposition to this application. I note Ms Flynn's submission in open Court that the Secretary does not view electronic monitoring conditions as a de facto core condition, and that each case is considered individually. Given the Secretary ultimately did not oppose the variation of the contested condition, I will not summarise their previous position.

41 Having regard to the materials before me and the oral submissions of Mr deVietri, I am satisfied that MTE's circumstances have changed significantly since Champion J imposed the Order. In particular, it appears that MTE is no longer at risk of homelessness or itineracy. To the contrary, MTE is very settled in his accommodation, has a 12 month lease, and has successfully advocated for himself to stay in that property, which represents insight into the need for settled and stable housing. That MTE has also had a pet cat for over a year is also suggestive that he is committed to a more settled and stable lifestyle.

42 I also take into account MTE's general compliance with the conditions of his Order to date. He has a number of different appointments and obligations he must meet under his Order, and notwithstanding a few teething issues at the outset of his Order, he has largely managed all of his obligations very well. This is quite impressive for someone who has spent, prior to the last 19 months, almost their entire adult life in prison, and who had, by all accounts, a very poor upbringing. It is encouraging that MTE is working well with Dr Thompson and that he is cooperative also with the Forensic Intervention Service.

43 Where there have been isolated incidents regarding MTE's compliance, I accept Mr de Vietri's submissions that none of these incidents have been discovered or resolved as a result of the GPS tracking device. MTE's own reporting uncovered these issues and that demonstrates that he is indeed capable of complying with his Order without the need for GPS monitoring.

44 I also note the negative impact that the GPS device has had on MTE's mental health and his desire to engage in the community. It is clear that the GPS device has been a significant imposition on MTE. When these negative impacts are weighed against the fact that the GPS device has not been necessary to ensure MTE's compliance with his Order in the last 19 months, it seems clear that the electronic monitoring condition is no longer appropriate nor proportionate to MTE's risk of re-offending.

45 It is clear that an alternative option of telephone monitoring now represents the minimum interference with MTE's liberty and freedom of movement necessary to fulfil the conditions of his Order, and that is proportionate to the gravity of his risk of re-offending.

46 Accordingly I will vary the Order to remove the requirement for electronic monitoring, and replace it with a requirement for telephone monitoring.

[1] A pseudonym has been used for the applicant, in accordance with the decision of Champion J in Re MTE (No 3) [2020] VSC 646.

[2] The Order requires the Secretary of the Department of Justice and Community Safety to file an Application for Review no later than 20 May 2022.

[3] For the applicant: Outline of Submissions dated 8 September 2021, Report of Dr Pandurangi, dated 25 July 2021, Report of Dr Thompson, dated 25 June 2021. For the respondent: Outline of Submissions dated 9 September 2021 attaching: Assessment Report of Dr Godfredson dated 27 October 2019, Addendum Report of Dr Godfredson dated 10 May 2020, and Special Report of the Department of Justice and Community Safety dated 2 September 2021.

[4] Tendered and marked Applicant Exhibit 2.

[5] Being a letter from McCormack Housing dated 23 June 2021, Applicant Exhibit 5, and a letter from MTE to the PSA, undated, Applicant Exhibit 6.

[6] Condition 7.8 on the Order of Champion J dated 21 May 2020.

[7] I note for completeness that the parties did not take issue with the publication of written reasons, notwithstanding my intention to extend the non-publication order in this matter. The Court was directed to the decision of Champion J in Re MTE (No 3) [2020] VSC 646, and the Court has had regard to his Honour's comments in that ruling about the appropriate way in which to publish written reasons regarding this matter to ensure the non-publication order is not undermined, thus protecting MTE's prospects of rehabilitation, while also ensuring the reasons for my decision to vary the supervision order are 'intelligible and provide sufficient information for them to be understood in a transparent way', in accordance with [8] of his Honour's ruling.

[8] Re MTE [2020] VSC 243, [20].

[9] Re MTE (No 2) [2020] VSC 356, [7]-[12].

[10] MTE also contested the imposition of an alcohol abstinence condition. That condition as also imposed by Champion J, and is not the subject of this review application.

[11] Re MTE (No 2) [2020] VSC 356, [3].

[12] [2020] VSC 356, [136]-[138].

[13] MTE has also had a pet cat for almost a year.

[14] Dr Thompson's report is dated 25 June 2021, Dr Pandrangi's report is dated 25 July 2021.

[15] Dr Thompson refers to incidents during Summer where MTE refused to wear shorts for fear of exposing the bracelet, leading to him becoming uncomfortable, in turn causing further intrusive thoughts about his offending.