The Secretary to the Department of Justice and Community Safety v C, T [2025] VCC 698

(a) first, the Court is satisfied that Mr C poses an unacceptable risk of committing a serious sex offence or serious violence offence if a supervision order is not made and he is in the community;[2]

(b) second, the Court determines that it is appropriate, in the exercise of its discretion to make a supervision order;[3]

(c) third, the Court determines that a condition requiring Mr C to reside at Rivergum is:

(i) the minimum interference with Mr C's liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions of a supervision order;[4] and

(ii) reasonably related to the gravity of the risk of Mr C re-offending;[5]

(d) fourth, the Court determines that it is satisfied that:

(i) a condition requiring Mr C to reside at Rivergum is necessary to reduce the risk of Mr C committing a serious sex offence or a serious violence offence;[6] and

(ii) less restrictive means of managing the risk of him committing a serious sex offence or a serious violence offence have been tried or considered;[7] and

(e) fifth, the Court determines that it is appropriate, in the exercise of its discretion, to make a condition requiring Mr C to reside at Rivergum, having regard to the treatment and supervision plan filed by the Secretary[8] and any other matter the Court considers appropriate.[9] This may include the means of managing Mr C's risk and the likely impact the supervision order may have on Mr C.[10]

1. When making any supervision order, the Court must also determine whether any other non-mandatory conditions should be imposed,[11] set the appropriate term of the supervision order and set the appropriate next review date for the supervision order.
2. Before considering each of these matters, I will say a little more about two matters which are critically important to the determination of at least the third to fifth matters above - what residing at Rivergum would look like for Mr C; and the importance given by our constitutional democracy to the human right of liberty.

1. Rivergum is a residential treatment facility managed by Corrections Victoria. It has been in operation since 26 November 2018. It differs from Corella Place and Corella 228 (the two other post-sentence residential facilities operated by Corrections Victoria) in that it is a "residential treatment facility" within the meaning of the Act rather than a "residential facility". As such, it aims to provide for the "intensive treatment and supervision of persons subject to a supervision order...in a secure, therapeutic and structured environment".[12] Further, as a residential treatment facility, Rivergum may house both serious sex offenders and serious violent offenders, whereas a residential facility may only house offenders who have had a custodial sentence imposed upon them for a serious sex offence.[13]
2. Rivergum, as it was designed to operate, was intended to provide the benefits of a "therapeutic community" in which intensive treatment could be provided by a multi-disciplinary team "with a strong emphasis on a communal living experience, peer group influence and group treatment interventions."[14] A three-phase program is provided:

(a) the preparatory phase, which lasts between 4-6 months. Its purpose is to "encourage increased levels of motivation and readiness to meaningfully and positively engage in intensive treatment";[15]

(b) the intensive treatment phase, which lasts 12-15 months. Its purpose is to "increase engagement with treatment activity and reduce attrition. This is achieved through an appropriate and supportive environment for those undertaking treatment to support offenders to actively apply skills and learning achieved through intensive treatment";[16] and

(c) the reintegration phase, which lasts 4-6 months. Its purpose is to "increase opportunities for maintaining and generalising treatment gains, by putting new skills into practice and demonstrating improvements in behaviour".[17]

1. The program is designed to enable a participant to reach completion of all three phases within the two-year maximum period of an initial residential treatment facility condition. However, the Act provides for the capacity to extend a residential treatment facility condition for a further 12-month period in appropriate circumstances,[18] and then a second 12-month period in exceptional circumstances.[19]
2. The team in Rivergum uses a therapeutic approach known as schema therapy. In oral evidence, Mr Simon Candlish, a consultant psychologist retained by the Secretary to prepare an assessment report in relation to Mr C, explained schema therapy as follows:[20]

"Schema therapy is particularly appropriate and useful because it directly explores and addresses characterological issues. So it looks at first problematic personality traits, and it looks at the way in which a person copes and responds to dysfunctional schemas and they're the modes. So what's useful about this particular therapy is it examines the way in which a person responds to dysfunctional schemas and assists that person to change their behaviour, to behave in ways that are more functional and to understand where that behaviour is coming from. So, for example, there may be over-compensation in a person's behaviour and that is linked to earlier experiences and distorted ways of considering earlier experiences and so the benefit of the treatment is that you're increasing a person's insight about their dysfunctional Schemas, but you're also importantly assisting them to change their behaviour, to think differently and have a great understanding as to their problematic behaviour."

1. According to the evidence relied upon by the Secretary, the approach applied in Rivergum (i.e.: of schema therapy applied in the context of a therapeutic community) was evidence-based and effective. I will discuss later in these reasons the extent to which I am satisfied that this is the case.
2. However, in the case of Mr C, there is a significant difference between what would be available to him at Rivergum, on the one hand, and the model of a "therapeutic community" and the provision of group therapy around which Rivergum was created, on the other. This is because, when he first came to reside at Rivergum late last year (under the terms of an interim supervision order), Mr C was the sole resident of Rivergum. In other words, the Rivergum community consisted solely of Mr C, Corrections Victoria staff and external visitors. Since then, one other resident has joined the community. However, there was no evidence before this Court in relation to the duration of that resident's residential treatment facility condition or the nature of the offences which led him to be there.
3. It was accepted by the Secretary that one or two residents was insufficient for group schema therapy to be effective.[21] It is also difficult to see how a community consisting of one or two residents plus Corrections Victoria staff could be aptly described as a therapeutic "community".
4. In more practical terms, residing at Rivergum is likely to involve Mr C:

(a) being confined to Rivergum, without being permitted any outings to the community for at least the preparatory and intensive treatment phase (as Mr C is ready to commence the intensive treatment phase, this would be at least a further 12 months);

(b) during this confinement, largely associating only with Corrections Victoria staff and one other resident;

(c) being permitted visitors only on weekends and evenings, and then only if those visitors were capable and willing to travel to Ararat;

(d) being provided individual schema therapy of approximately three hours per week;

(e) being provided around 18 hours weekly of other "treatment", including:

(i) a Life Tool Kit skills-based program which is based on Dialectical Behaviour Therapy; and

(ii) access to other activities, such as walking groups and basketball and trade skills programs,

all conducted either on his own, with one other resident or with Corrections Victoria staff.

1. It is common in applications of this kind for the Court to be informed that confinement at Rivergum is not "imprisonment" and Rivergum is not a "prison". It is correct that Rivergum is not a prison within the meaning of s3 of the Corrections Act 1986 and that Mr C will not be serving a "term of imprisonment" within the meaning of the Sentencing Act 1991 during any period he is required to reside at Rivergum.
2. However, as Blackstone wrote in Commentaries on the Laws of England:[22]

"The confinement of the person, in any wise, is an imprisonment. So that the keeping (of) a man against his will ... is an imprisonment ... To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus."

1. From the perspective of Mr C's experience, there is no material difference between Rivergum and a prison. He is to be confined to Rivergum against his will. No basketball courts, pickleball games or walking groups can alter this basic fact.
2. The only material difference is purposive. A term of imprisonment is imposed as punishment for a crime which a Court has determined has been committed. It may have benefits in terms of reducing public risk, including through specific and general deterrence, but the principle of proportionality dictates that the sentence must be proportionate to the seriousness of the crime. A condition of a supervision order requiring a person to be confined to a residential treatment facility, on the other hand, is imposed to protect the public from the risk that a crime will be committed in the future through the provision of intensive treatment. The proportionality required to be considered is proportionality to the gravity of the risk of re-offending, rather than to the gravity of the offender's actual conduct.
3. Justice Edelman explains this distinction in Garlett v Western Australia:[23]

" ...a fundamental premise of the criminal law is that individuals have free will. An offence is generally the result of a chosen act. One of the most serious responses of the criminal law is to punish that act, and the individual choice, with imprisonment. But for many years parliaments have also permitted people to be imprisoned, by "continuing detention orders", for choices that they have not yet made, and offences that they have not yet committed.

1. In my view, it is better to call a spade a spade, particularly when decisions impacting upon fundamental human rights are concerned. What is primarily issue in this application is whether Mr C should be imprisoned for at least two and a half years[24] beyond any term of imprisonment which has been imposed upon him as punishment for his prior acts. Such imprisonment requires lawful justification.

1. As Chief Justice Gibbs said in Williams v The Queen[25]:

" The right to personal liberty is..."the most elementary and important of all common law rights". Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England "without sufficient cause" (Commentaries on the Laws of England (Oxford 1765), Bk.1, pp.120-121, 130-131). He warned:

"Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities."

1. The right to liberty is enshrined in the law of Victoria in s21(1) of the Charter of Human Rights and Responsibilities Act 2006:

"Every person has the right to liberty and security."

1. In the context of supervision orders, the Court of Appeal has explained:[26]

In turn, the common law presumption in favour of the liberty of the subject underpins the nature of the predictive inquiry required under s 9. The right to personal liberty is the most elementary and important of all common law rights, identified by Blackstone "to be an absolute right vested in the individual by the immutable laws of nature" which had never been abridged by the laws of England "without sufficient cause". The common law has continued to attach "momentous significance" and "supreme importance" to personal freedom. The right to liberty and autonomy explains why the concept of "unacceptable risk" should be interpreted so as to limit the enjoyment of that right only to the extent that is reasonably necessary to give effect to its legislative purpose.

The evaluative task in determining an "unacceptable risk" necessarily involves consideration of the values accorded to liberty at common law and the values ascribed to the rights in Pt 2 of the Charter. Those considerations are intrinsic to the notion of an unacceptable risk, which requires those values to be balanced against the risk. Were it otherwise, any risk would be unacceptable. The threshold test in s 9(1) provides for the manner in which the court may strike a balance between protection of the community and the restriction of the offender's human rights. Although the impact on the offender of the making of an order is excluded from the test, the conceptual value of individual liberty and other human rights remain to be weighed in the balance. Though the test of unacceptable risk involves no prediction of the impact of an order on the particular individual, it necessarily involves consideration of the value which is placed on liberty and other human rights.

1. Lofty statements of the importance of the human right to liberty are not mere window-dressing. Mr C may well be a man for whom the average person would find it hard to feel empathy. He may well be a man for whom many would say "just lock him up and throw away the key". But he remains a human. In a constitutional democracy such as our own, all humans, by virtue of their humanity are entitled to human rights, including the right not to have their liberty taken away from them except in accordance with law. That protection is important, not just for Mr C's sake, but for all our sakes. For who knows, one day, we may belong to a category of persons for whom the average person would find it hard to feel empathy. History would demonstrate that this is not out of the bounds of possibility for any of us.
2. It is for that reason that (however I may abhor Mr C's prior actions and whatever my personal tolerance of risk may be) when deciding whether Mr C poses an unacceptable risk if in the community without a supervision order, I must bear in mind the conceptual value of liberty. And when determining whether I should order Mr C to be confined in Rivergum, the personal impact upon him of depriving him of his liberty must weigh heavily in the balance.

Is the Court satisfied that Mr C poses an unacceptable risk of committing a serious violence offence if a supervision order is not made and he is in the community?

1. Assessments of the risk that Mr C would commit a serious violence offence if released in the community and not made subject to a supervision order were performed by Mr Candlish (the forensic psychologist retained by the Secretary) and Dr Michael Davis (a consultant forensic clinical psychologist retained by Mr C). They each concluded that Mr C was a high risk of committing a serious violent offence if released into the community and not subject to a supervision order.
2. Mr C's prior serious violent offending has been characterised by brutality and loss of control, with severe life-altering injuries to his victims. Mr Candlish describes any likely re-offending as follows:[27]

384. Should he decide to re-offend in a violent manner, [Mr C] would most likely punch a man or woman to the head with a closed fist and kick the victim. He is most likely to stomp on the person's head. He is also likely to use a weapon and strike a person's head with a hammer or stab a person's body with a knife. [Mr C] could instruct another person to threaten or assault a person on his behalf.

385. [Mr C]'s violence is likely to occur in the context of associations with negative peers and involvement in dubious activities such as assisting someone to purchase drugs or whilst engaging in other illegal activities. He is more likely to become violent in the context of discovering negative rumours about him, and developing a grievance due to feeling humiliated or believing that he is being disrespected or perceived as weak. Heightened stressors, interpersonal conflict, and aggressive confrontations are likely to contribute to violence. He could be sober or substance affected. If substance affected, he is more likely to react aggressively, persist with violence, and cause more serious harm.

386. Should [Mr C] re-offend violently, this is likely to result in serious harm including severe facial injuries, head trauma and brain damage. His violent behaviour poses an increased risk of death.

1. Counsel for Mr C submitted that I should take into account Mr C's lack of violent offending during his most recent term of imprisonment, particularly in the last five years. There are some positive signs arising from Mr C's behaviour recent years, including the lack of commission of any criminal offences in the last 13 years, the absence of any incidents of serious violence for at least five years and the lack of any reports of issues with drug or alcohol during his term of imprisonment. However, in relation to risk, I am guided by the expert evidence.[28] The experts have considered these matters and nevertheless determined that Mr C is a high risk of committing a serious violence offence. This provides "acceptable, cogent evidence to a high degree of probability"[29] that Mr C will pose an unacceptable risk if in the community without a supervision order.
2. Having regard both to the degree of the risk and the gravity and nature of the likely offending, and magnitude of harm which may result,[30] Mr C clearly poses an unacceptable risk of committing a serious violence offence if a supervision order is not made and he is in the community.

Is it appropriate for the Court to exercise its discretion to make a supervision order?

1. Mr C has a long and troubled history of violent offending. He has offended very soon after being released from custody. He has offended while still on parole. He has offended while imprisoned. To date, no other interventions appear to have been successful in enabling him to live for any prolonged period of time in the community.
2. Having regard to the purposes of the Act:

(a) primarily to provide for the enhanced protection of the community; and

(b) secondly to facilitate Mr C's treatment and rehabilitation,

I am satisfied that it is appropriate in the exercise of my discretion to make a supervision order.

Is a condition requiring Mr C to reside at Rivergum:

a) the minimum interference with Mr C's liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions of a supervision order; and

b) reasonably related to the gravity of the risk of Mr C re-offending?

Is the Court satisfied that a condition requiring Mr C to reside at Rivergum is:

a) necessary to reduce the risk of Mr C committing a serious sex offence or a serious violence offence or both; and

b) less restrictive means of managing the risk of him committing a serious sex offence or a serious violence offence or both have been tried or considered?

1. As these are the threshold requirements for the making of a residential treatment facility condition, I will consider these requirements together. As I explain below, in the circumstances of this case each turns primarily on a single question: to what extent is the Court satisfied that confining Mr C to Rivergum will be effective to reduce the risk that he will commit a serious sex offence or serious violence offence in the future?
2. I will take the requirement in s27(4)(b) of the Act first. This requires that any condition of a supervision order be reasonably related to the gravity of the risk of Mr C re-offending. Given the experts agree Mr C is a high risk of committing a serious violence offence and the nature of his likely offending, a requirement that he reside at Rivergum would not be disproportionate to the gravity of the risk. However, this requirement asks whether the condition is "related" to the gravity of the risk, not whether it is "proportionate" to it. This requires consideration of the extent to which the condition impacts on that risk.
3. Second, s27(4)(a) of the Act requires that the condition constitute the minimum interference with Mr C's liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions of the supervision order. The primary purpose of the conditions of a supervision order is to reduce the risk of the offender re-offending.[31] This may be achieved through a condition which promotes the rehabilitation and treatment of Mr C or addresses the types of behaviour that may increase his risk of committing a serious sex offence or a serious violence offence or of engaging in behaviour that threatens the safety of any person.[32] Self-evidently this requires an assessment of the effectiveness of the proposed condition at achieving Mr C's rehabilitation.
4. Third, specifically in relation to residential treatment facility conditions, section 32(1)(a) of the Act requires the Court to be satisfied that the condition is necessary to reduce the risk of Mr C committing a serious sex offence or serious violence offence. In Garlett, Kiefel, Keene and Steward JJ considered the meaning of the word "necessary" in the context of a requirement that it be "necessary to make a restriction order in relation to the offender". They concluded that:[33]

...a restriction order is "necessary" to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. The Court must consider whether a restriction order is necessary to ensure adequate protection of the community.

1. The word "necessary" was thus not interpreted in a narrow, "but for" sense which focussed only on whether a restriction order would ensure adequate protection of the community, but imported an evaluation of the extent of the protection offered to the community against the offender's putative entitlement to liberty.
2. Similarly, the word "necessary" in the context of 32(1)(a) of the Act does not merely require that it be established confining Mr C to Rivergum will to some extent reduce the risk of him committing a serious sex offence or serious violence offence. It requires an evaluation of whether making the order is "necessary" to achieve that reduction having regard to Mr C's putative entitlement to liberty. This evaluation cannot be achieved without having regard to the likely effectiveness of the proposed condition at reducing the risk that Mr C will commit a serious sex offence or serious violence offence.
3. Fourth, again specifically in relation to residential treatment facility conditions, section 32(1)(b) of the Act requires less restrictive means of managing the risk to have been tried or considered. This requires a comparison between what will be achieved by confining Mr C to Rivergum against what will be achieved by less restrictive means of managing the risk.
4. In relation to the evidence of the likely effectiveness of confining Mr C to Rivergum, there was a conflict between the evidence of Dr Davis and that of Mr Candlish. Mr Candlish espoused the view that:[34]

A placement at [Rivergum] would address [Mr C's] various and complex needs which not only includes his severe personality impairment but his past problems with achieving stability and pro-social goals whilst in the wider community.

...[Rivergum] offers intensive treatment, a therapeutic community, and intensive support to address a range of domains that have relevance in supporting and enabling him to reside in the community more effectively and in a pro-social manner.

[Rivergum] is considered the most suitable and effective approach to addressing his complex and significant needs in a way that will increase the likelihood of a much more successful transition back into the community. It is considered the only way to address his outstanding treatment needs given his prior history in the community and his current difficulties.

1. On the other hand, Dr Davis was of the opinion that:[35]

It is possible that highly structured, individual treatment sessions, with clearly defined behavioural treatment goals, conducted with a thorough understanding of psychopathy, that do not make vain attempts to change entrenched personality features, will be potentially useful for [Mr C]. I am just not convinced that [Rivergum] is the appropriate venue to provide such treatment. Indeed, until very recently, [Mr C] was the only resident of the facility. Another resident has recently been transferred to [Rivergum], but I do not know anything about them so it is difficult to determine if "group" treatment (to use the term loosely) will be advantageous. From a base rate perspective, I would be extraordinarily surprised if the new resident has a personality structure close to [Mr C]. Moreover, I am concerned that the lack of social connectedness may inadvertently increase his risk. Two people is hardly an immersive therapeutic community environment. I note that [Mr. C] is currently getting along well with the highly professional staff at [Rivergum]. However, he is 59 years-old and the opportunities to create a life in the community whilst under the careful and expert supervision of a Specialist Case Manager, perhaps by obtaining suitable employment for a few years, making social and leisure connections for his retirement, and solidifying accommodation and family connections, are being traded for a treatment that is unlikely to have a particularly large benefit.

1. For the following reasons, I prefer the opinion of Dr Davis.
2. First, Dr Davis clearly had a deep level of expertise and experience in forensic psychology, including in relation to both risk assessment and interventions and specifically focussed on psychopathology. Mr Candlish's professional record did not demonstrate the same depth of expertise, particularly in relation to psychopathology. Nor did that of Mr Evans, the Principal Clinician (Practice) for Forensic Intervention Services employed by Corrections Victoria.
3. Second, Dr Davis was able to provide detailed citations to specific reports on the effectiveness of therapeutic communities and schema therapy in reducing risk in psychopathic offending.[36] I accept Dr Davis' evidence that there is little by way of direct evidence that such treatment is effective in reducing recidivism. In particular, he said that while preliminary results in relation to schema therapy have been promising, it has not yet shown reduction in re-offending in the community, particularly in relation to offenders with psychopathy. He was aware of only one study - by Mark Olver and Stephen Wong - which demonstrated some effectiveness for intensive treatment of people with psychopathy in reduction of risk. However, even in that study, the effect was slight - 94% of participants were reconvicted of another offence and 85% were reconvicted of another violent offence. The impact observed was not in the rate of recidivism, but in the length of time that the offenders were in the community before re-offending, and the seriousness of the offence (as judged by the sentence imposed).
4. Third, and in any event, given the low number of residents at Rivergum, it simply cannot be described as a "Therapeutic Community" of the kind which has to-date been the subject of research and which formed part of the guiding rationale for the establishment of Rivergum. No evidence was put forward that the modest improvements identified by Dr Davis in the published research applied where the "community" consisted of only one or two offenders. Indeed, as Mr Candlish himself explained:[37]

Having more participants within a program allows for exchange of ideas. It allows for participants to effectively challenge each other on perhaps distorted ideas or problems in the way they're engaging with treatment. It allows for participants to learn through the learning of another so when someone has therapeutic breakthrough or an improved understanding of a particular issue and demonstrate that - demonstrates that within a group therapy context, other people present benefit from exposure to that person's change in attitudes or behaviour. I think that it's motivating. It's motivational as well, so if more participants show motivation and show that they're benefiting from those treatment, those who aren't as motivated might become more motivated because they see benefits available to them

There are obviously benefits to having other participants that um support his progress and have him reflecting on his own behaviour.

1. Mr C has spent months imprisoned at Rivergum with no other inmates; and only Corrections Victoria staff and sporadic external visitors for company. It is proposed to continue to imprison him in Rivergum for a period of two years, with the real possibility that he might have contact with only one other inmate during this time. Mr Evans' evidence was that it was likely that Mr C would have individual schema therapy rather than group schema therapy for the entirety of the 12-15 month intensive treatment phase. This is such a significant departure from the principles of a Therapeutic Community described in the Glass affidavit that its impact, not only on the effectiveness of Mr C's treatment, but also on Mr C's well-being, requires careful and detailed scrutiny and consideration. This careful and detailed scrutiny and consideration was not provided in the evidence before me.
2. Fourth, given his expertise specifically in psychopathy, I accept Dr Davis' evidence that a number of features of Mr C's severe personality disorder make him particularly resistant to treatment:

(a) Mr C was assessed by Dr Davis as being high to very high in psychopathy, which is highly resistant to treatment;

(b) he is almost 60 years old and his personality structure is firmly entrenched; and

(c) he has a high degree of affective (or "facet 2") features.

In particular, I accept that pursuing characterological change (which did appear to be a focus of the treatment at Rivergum as described by Mr Candlish,[38] although not as described by Mr Evans) is futile and the focus of any treatment needs to be upon modifying Mr C's behaviour rather than his character.

1. Fifth, I also accept his evidence that confinement in Rivergum will come at a cost to other potentially protective factors for Mr C, particularly given his age, because of:

(a) the lack of social connectedness. This is a compelling factor. Mr C clearly maintains a good relationship with his mother who is very supportive of him. However, she resides in Melbourne. Visits to him in Ararat are likely to be few and far between. Given her age, it is uncertain the extent to which she will be available to assist his reintegration into the community in two or more years' time. Further, given the lack of other residents at Rivergum, Mr C may emerge from two years' at Rivergum having spent his time almost exclusively with Corrections Victoria staff; and

(b) the lack of opportunity to commence employment. Mr C is 59 years of age and has no consistent employment record. He has limited years' of employment left. Employment is important from the perspective of providing gainful activity, but also from the perspective of improving social connectedness.

1. Mr Candlish also accepted that stability in lifestyle (including stable accommodation), maintenance of employment, increased connections to pro-social peers and maintenance of a healthy intimate relationship were protective factors for Mr C; although he maintained that Mr C would have the best chance of achieving these things only after completing treatment at Rivergum. However, as Dr Davis put it in cross-examination "the window of opportunity [for Mr C] to make some connections in the community is very narrow".[39] Given he is nearly 60 years of age, I accept that delaying the opportunity for him to build connections in the community for two years may lead to a long-term reduction in the quality and extent of these protective factors.
2. Sixth, I accept Dr Davis' cautious evidence that treatment may be successful in the community, if Mr C is seen by the right therapist and ideally a forensic or clinical psychologist who is aware of the literature on psychopathic offenders and people with severe personality disorders. Dr Davis acknowledged the evidence of Mr Candlish and Mr Evans that the dosage would not be as high in the community. However, he was also of the view that there was reason to be cautiously positive that aspects of Mr C's recent behaviour (particularly his lack of recent offending in prison and absence of recent substance abuse) might show some personality maturation later in life. He also saw some benefit in Mr C being able to practice and demonstrate the skills he was learning in the community, which would not be available in Rivergum. Dr Davis' evidence in this regard was more cautious and nuanced than Dr Candlish's evidence that because of the severity of Mr C's personality disorder he required to be confined to Rivergum for treatment to be effective.
3. Seventh, all the experts agreed that ongoing motivation is a key to successful treatment. I accept that Mr C has made some progress lately in Rivergum. But his positive attitude has also clearly waned in more recent times. It is simply not possible to predict whether Mr C will be more motivated if confined to Rivergum. It may be that the continuation of his existing positive relationships in Rivergum will be of assistance to him. Or it may be that the stress and resentment of being imprisoned, and the lack of social connection, will be counter-productive to his motivation.
4. Mr Candlish struck me as a dedicated forensic psychiatrist with a deep commitment to providing the best possible treatment to a difficult population. It was clear that he was a strong proponent of the benefits of schema therapy and the Rivergum program. However, he also at times made very frank concessions about the limitations of the treatments he proposed. Mr Evans was also clearly a committed psychologist and a strong advocate for the benefits of Rivergum. The level of resources committed to the program at Rivergum is exemplary. It is clear, too, that the staff are well-trained; and committed to the extraordinarily difficult task of rehabilitating serious violent and serious sex offenders. There is a superficial attractiveness to the idea that more resources and more intensive treatment will produce a greater reduction in risk. However, in the particular circumstances of Mr C, I find myself unable to conclude that confining him to Rivergum would provide any significant greater long-term reduction in his risk to the community, when compared to allowing him to live in the community under a supervision order.
5. Of course, confining Mr C to Rivergum will lead to an immediate reduction in his risk for the next two years. Conversely, there is a real risk that Mr C will commit an offence of violence within the next two years if not confined to Rivergum, even if subject to a supervision order. However, through the text of the Act, Parliament has underlined the importance of the provision of effective treatment and services as a rationale for the deprivation of liberty entailed in confining Mr C to Rivergum. For example, the Act:

(a) uses the word "treatment" in the name "residential treatment facility";

(b) uses the phrase "intensive treatment and supervision condition" [emphasis added] for a condition requiring an offender to reside in a residential treatment facility;

(c) limits the duration of a residential treatment facility condition strictly to an initial period of two years, with the possibility of only two further one year extensions;[40] and

(d) requires the court to consider a treatment and supervision plan.[41] In the case of Mr C, that plan must set out the treatment and services that will be offered to Mr C, why the treatment and services are required to help reduce the risk of Mr C committing a serious sex offence or a serious violence offence, whether less restrictive residence options for the delivery of treatment and services to Mr C have been tried or considered, the benefits of delivering treatment and services in Rivergum and a proposed process for Mr C to transition from Rivergum to another location.[42]

1. I am acutely aware that there is a risk that Mr C will commit an offence of violence in the next two years if not confined to Rivergum. However, in circumstances where I am not satisfied that the proposed treatment at Rivergum will be significantly more effective than permitting Mr C to live in the community subject to a supervision order, I am compelled to the conclusion that a condition confining Mr C to Rivergum:

(a) does not constitute the minimum interference with Mr C's liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions;

(b) is not reasonably related to the gravity of the risk of Mr C re-offending;

(c) is not necessary to reduce the risk of Mr C committing a serious sex offence or a serious violence offence; and

(d) is not appropriate having regard to a less restrictive means of managing the risk, namely releasing Mr C into the community subject to a supervision order.

1. Accordingly, the statutory pre-requisites for including a condition in the supervision order compelling Mr C to reside at Rivergum are not met.

Is it appropriate for the Court, in the exercise of its discretion, to make a condition requiring Mr C to reside at Rivergum?

1. Had the statutory preconditions for the making of a condition requiring Mr C to reside at Rivergum been met, I would not have exercised my discretion to make the order. I am not persuaded that such a condition is appropriate having regard to:

(a) the severe impact on Mr C's liberty of such a condition, particularly in a context where he may have contact with only one other resident, Corrections Victoria staff and visitors for the next 12 months;

(b) the tenuous nature of the evidence that treatment proposed for Mr C in the treatment and supervision plan would reduce Mr C's long-term risk (particularly having regard to the likely unavailability of true group therapy or a therapeutic community);

(c) the small positive signs of improvement in his behaviour; and

(d) the absence of any attempt at managing Mr C in the community under a supervision order.

What other non-mandatory conditions should be imposed and what is the appropriate term of the supervision order and the appropriate last review date for the supervision order?

1. Mr C has a severe anti-social personality disorder with a high to very high level of psychopathic features; has a long history of violent offending; and has been assessed as at high risk of committing a serious violence offence if in the community without a supervision order. In this context, it is important that strict conditions are imposed on his return to the community to manage his risk and protect the community. With two exceptions, I am satisfied that each of the conditions proposed by the Secretary (other than the condition requiring him to reside at Rivergum) are appropriate having regard to the purposes of the conditions of a supervision order and constitute the minimum interference with Mr C's liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions and are reasonably related to the gravity of the risk of Mr C re-offending. The first exception is that curfew should end at 6am, rather than 7 am, to maximise Mr C's prospects of employment. The second exception is that Mr C should be prohibited from knowingly having contact with female children between the age of 8 and 16 years, rather than all female children under the age of 16 years. Mr Candlish assessed Mr C at an average[43] or moderate risk of committing a sex offence. Dr Davis assessed Mr C at a low-moderate risk of committing a sex offence. Although a convicted sex offender, neither expert expressed the view that Mr C had any paraphilic disorder. The Secretary did not contend that Mr C was an unacceptable risk of committing a serious sex offence if in the community and not subject to a supervision order. Preventing Mr C from having contact with female children under the age of 8 would unnecessarily restrict his capacity to form positive social connections, itself a protective factor against future serious offending.
2. I am also satisfied that it would be detrimental to his rehabilitation and therefore against the public interest for Mr C's identity or location to be published. Accordingly, I will make an order under s279 of the Act preventing publication of any information that might enable Mr C or his location to be identified.
3. As to the term of the supervision order, both Mr Candlish and Dr Davis gave evidence as to the difficulty treating Mr C's condition and the necessity for Mr C to demonstrate improvements in his behaviour in the community before any reduction in risk is possible. Mr Candlish, in particular, said reduction in risk would take years. Given this, I accept that the appropriate term of the supervision order is six years and that the latest date by which the Secretary should apply for the first review of the supervision order is 2 June 2028.

1. The Court will not make an order requiring Mr C to reside at Rivergum. The draft supervision order submitted by the Secretary is to be revised and re-submitted in the accordance with these reasons.

[1] The Act uses the phrase "serious sex offence or serious violence offence or both". For convenience in these reasons, I have treated the word "or" as an inclusive disjunction and omitted the words "or both".

[12] Affidavit of Alexandra Glass affirmed 28 November 2024 ("Glass affidavit"), paragraph 6

[21] Although it was contended that the Life Tool Kit program could operate as group therapy, with Corrections Victoria staff making up the membership.

[22] Cited by Brennan, Deane and Dawson JJ in Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at [23]

[23] Garlett v Western Australia (2022) 277 CLR 1 ("Garlett") at [203]

[24] The Secretary is seeking a two-year residential treatment facility condition and he has already spent approximately six months in Rivergum under the terms of his interim supervision order.

[25] [1986] HCA 88; (1986) 161 CLR 278 at 292 [9]

[26] Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359 ("Nigro") at [67] and [103]

[27] Report of Simon Candlish dated 21 August 2024, paragraphs 384-386

[33] (2022) 277 CLR 1 at [73]. See also per Edelman J at [226]-[227].

[34] Letter of Advice of Simon Candlish dated 18 October 2014, paragraphs 2-5

[35] Assessment Report of Dr Michael R Davis dated 6 May 2025, paragraph 273

[36] No criticism is intended of Mr Candlish, as Dr Davis had the benefit of considering Mr Candlish's evidence overnight before providing this evidence.

[37] T27, L27 - T28 - L12 and T28, L22 - L24

[38] He explained "Schema therapy is particularly appropriate and useful because it directly explores and addresses characterological issues" - T13, L8-L10, and "Due to severity of his personality disorder, it makes it particularly difficult for someone like the respondent to be in the community, address his characterological issues, whilst simultaneously attempting to address lifestyle difficulties, goal-setting...self-direction, managing his interpersonal relationships, responding to case management" - T14, L19-L26, and "I think that...the longer term more immersive environment that's offered at Rivergum allows for a very strong focus on characterological issues"- T18, L27-L29 and that schema therapy "does attempt to address characterological issues but also his history of functioning well and in a pro-social manner within the community" - T17, L9-L11.