23 It will be observed that the Court of Appeal has no power to vary the terms of an extended supervision order: paragraphs (a) and (b) give us a choice between revocation and confirmation and paragraph (d) permits an order to be revived but not varied. The only paragraph that might be thought to permit an indirect variation is paragraph (c), because, on one possible reading, it would apply if we thought that an extended supervision order should have been made but in different terms from the order that was made. On that reading, we might then quash the relevant decision and remit the matter to the court below with directions to ensure that the order was made on the terms that we considered appropriate. That is not, however, the true construction of paragraph (c).
24 There are several reasons why s.39(1)(c) applies only if the court below has not made or renewed an extended supervision order. In the first place, that is the more natural reading, especially in conjunction with ss.36 and 37. Secondly, it would be odd if we could secure a variation indirectly if an order had been made or renewed, when we cannot vary an order that we revive ourselves under paragraph (d). Thirdly, it is clear that we have no power under any paragraph of s.39(1) to say that we are uncertain whether an extended supervision order should have been made and remit that question to the court below to be reconsidered in the light of our reasons. Fourthly, the reading of paragraph (c) suggested in [23] above would be inconsistent with paragraph (b). If Parliament had intended the Court of Appeal to be able to remit an order for the purpose of its being varied, paragraphs (b) and (c) would have been combined.[28] Finally, under paragraph (c), the order must be quashed. There is no power to permit its continuance until the matter is dealt with by the court below.
25 The appellant has appealed under s.39. I express no opinion whether some other remedy may be available to him or to other offenders in an appropriate case.[29] As Mr Higham pointed out, the lawfulness of the instructions and directions given to him by the Adult Parole Board is not in issue on the appeal. For the reasons I have given, all we may do is either revoke the extended supervision order or confirm the decision of the County Court. If we think that there was a flaw in the way in which that decision was made, we must still do one or the other, because, as I have said, s.39 does not authorise us to quash the decision and send the matter back to be reconsidered.
26 The appeal is, in part, an appeal against an exercise of discretion. The court "may", not "must", make an extended supervision order.[30] The restrictions on appellate intervention in cases such as House v. R.[31] apply to that exercise of discretion. Those restrictions do not apply to the finding, by the court below, that the appellant is likely to commit a relevant offence if released in the community on completion of his sentence and not made subject to an extended supervision order. That is what might be called "an ordinary appeal" although, having regard to the terms of s.39 and the lack of any power to receive further evidence, it is probably an appeal in the strict sense.[32] It is our duty to determine whether the finding was flawed, but the onus is on the appellant to demonstrate error.
27 Mr Higham contended that the finding that the appellant was likely, in the sense explained in s.11(1), to commit another relevant offence was flawed in three ways. First, it was common ground below that the appellant would benefit from continued access to treatment programs. They were more likely to be available to him if he was subject to an extended supervision order, although that would not be a matter within the control of the court. It was said that her Honour made the order in large part to give the appellant access to those programs. Although one of the purposes of the mandatory conditions in s.15(3) is to promote the rehabilitation, and the care and treatment, of the offender,[33] the desirability of treatment must not be allowed to obscure the main purpose of the Act in s.1 or the threshold test in s.11(1).
28 The last point is correct, but I do not accept that her Honour fell into the trap that counsel identified. She referred to the fact that, without a court order, the appellant would be a voluntary participant at best in a program that had been recommended and not eligible at worst; but she immediately went on to say that, whilst his access to appropriate and effective rehabilitation was relevant to the likelihood of his re-offending, and his rehabilitation was essential for the protection of children who came into contact with him, she had to assess the application only on the basis that he met the test laid down in the Act. There is a passage in her Honour's reasons under the sub-heading "Any other relevant matters" that may be ambivalent, but I understand it subject to the unequivocal statement to which I have just referred.
29 The second suggested flaw was that both Ms Owen and the judge attached too much importance to the circumstances in which the appellant breached the conditions of his parole. One of those conditions was that he must not be in the company of children, unsupervised and without the written permission of Corrections Victoria. The appellant's mother and stepfather were separated. On parole, the appellant was not residing with his mother, because she had a number of under age children living with her. He was living with his stepfather, who, it is said, had been violent to him throughout his adolescence. On 9th July 2004 his stepfather had a young male relative staying at his house and so, in compliance with his parole conditions, the appellant had gone to stay elsewhere. It was his stepfather who requested the appellant to drive the boy home the following morning. The appellant tried to persuade his brother to do so, but his brother refused. The appellant gave in to pressure and, driving the boy home, was intercepted by police for a random licence check. He immediately admitted that he was in breach of his parole. There is no suggestion that his intentions towards his passenger were improper and no offence has been alleged.
30 That breach of parole is clearly relevant in two ways. First, it is further evidence of the unsatisfactory family environment to which the appellant would be exposed if he were not subject to an extended supervision order. There was other evidence to that effect. Secondly, it shows that the treatment programs in which he had been participating were not yet sufficiently effective to enable him to resist his stepfather's demands. It is common ground that the appellant had been participating in those programs in good faith and was making a genuine effort to rehabilitate.
31 Ms Owen was emphatic that the otherwise venial character of the breach was irrelevant. She said that in her written comments on Mr Joblin's report and maintained it steadfastly when she was cross-examined. The fact that nothing occurred in the car was, she said, "completely irrelevant". The judge intervened to point out that there was at least no circumstance of aggravation, as it were, to which Ms Owen assented. Mr Joblin, in his report, considered that it was relevant that no offending had taken place and relevant that both the intercepting police and the community corrections officer to whom the appellant reported on the morning of the breach had given him permission to drive back alone, with the boy, in order to insist that his brother accompany them.
32 Mr Higham submitted that the breach of parole was unfortunate in a number of ways. It meant that the appellant was taken back into custody for a relatively minor lapse. Notwithstanding a subsequent cautiously favourable report and the recommendations of corrections officers at the time of the breach, he was not released on parole again. Accordingly he had no second chance to show, in the context of the application by the Secretary, that he was learning the assertive skills that he had been taught and trying to put the good intentions, which everyone agrees that he has, into practice. Finally, Ms Owen's uncompromising attitude to the breach of parole influenced both the second and third stages of the risk assessment in her report.
33 The first stage was a purely actuarial prediction using the Static-99 Coding Rules (revised edition 2003). They put the appellant in the medium-high risk category. The breach of parole was not taken into account. The second stage was a clinically adjusted actuarial prediction using an instrument called the "Sex Offender Need Assessment Rating 2000-1 (SONAR)". Using that instrument, the appellant fell into the high risk category. Counsel submitted that the breach of parole had been factored in three times in the part of the assessment dealing with general self-regulation, when it should have been factored in only once. The third stage was Ms Owen's empirically guided clinical judgment. In her opinion, the appellant represented a high risk of re-offending. Again, counsel said, she was influenced, and unduly influenced, by the breach of parole.
34 The alleged double or multiple counting in the SONAR score sheet is of limited significance. Even if the breach of parole had been counted only once, the appellant would still have fallen into the high risk category, albeit with a lower score. The point remains that the higher score Ms Owen assigned may have affected her clinical judgment, but one has only to read her comments on Mr Joblin's report and her evidence to appreciate the influence that it had. It was relevant in the two ways that I have acknowledged, but the circumstances of the breach had to be borne in mind if it were to be kept in proportion. The judge referred to Ms Owen's and Mr Joblin's opinions but restricted herself to saying that the breach represented a serious failure by the appellant to deal with what were likely to be routine inappropriate requests made by his family and that the skills-based program in which he had participated could have been expected to have had a greater impact.
35 On its own, I consider that this second ground of complaint fails, because I think the judge took a broader view of the breach of parole and its surrounding circumstances than Ms Owen. The influence that it had on Ms Owen's professional opinion and the tenor of her evidence are nevertheless to be borne in mind as we pass to the third way in which Mr Higham submitted that her Honour's finding was flawed, including an aspect of her reasons to which attention was drawn by the Court.
36 There is a wide range of eligible offenders and relevant offences. At one end of the spectrum are the offenders instanced by the Minister for Corrections in his second reading speech in the Legislative Assembly[34]. "The community is rightly concerned", he said, "about the evidence that some paedophiles are likely to offend again and again throughout their lifetime and that they are likely to have many victims." At the other end of the spectrum, counsel submitted, were offenders like his client, opportunistic rather than predatory, aged between 21 and 24 at the time of the offences, with an intellectual disability but genuinely trying to reform. The argument was not that, although the appellant satisfied the test in s.11(1), her Honour should have exercised her discretion in his favour. The argument was that her approach to the threshold question was wrong and, in the words of the full statement of grounds, placed too much weight on Ms Owen's assessment report and her clinical judgment. I think that that submission should be accepted.
37 I referred earlier to the structure of the judge's reasons. It will be recalled that there was a section headed "Factors to Consider". The factors considered were those in s.8(1). The introductory paragraph showed that her Honour believed them to be the only relevant factors to consider in determining whether the test in s.11(1) was satisfied and all the other paragraphs in that section of her reasons were grouped under sub-headings taken from s.8(1). In my respectful opinion, that was an erroneous approach to adopt. It was inconsistent with s.11(1) and (3) and involved a misunderstanding of s.8. I do not overlook that her Honour correctly said, in the section of her reasons headed "Conclusions and Orders", that it was ultimately for her to determine whether the level of risk satisfied the test, whatever the level of risk at which the appellant had been assessed.
38 A court must make a decision in two stages under s.11(1). First, it must decide whether it is satisfied that the offender is likely to commit a relevant offence if released in the community and not made subject to an extended supervision order. The word "likely" is used in the sense of a high degree of probability. The court must be satisfied that there is a high degree of probability that the offender will commit a relevant offence. Secondly, if the court is so satisfied, it must decide whether to exercise its discretion to make an extended supervision order. This appeal is not concerned with that second stage.
39 The question whether the offender is likely, in the relevant sense, to re-offend is a question of fact to be answered by the application of a legal criterion. There is no one-to-one correspondence between the lawyer's high degree of probability and the medical expert's high risk of re-offending, which may be the tenor of the opinion he or she expresses pursuant to s.8(2). The actuarial prediction, its clinical adjustment and the medical expert's empirically guided clinical judgment are all matters for the judge to take into account. They will ordinarily be very significant. It is for that reason that s.11(3) requires the court to have regard to any assessment report filed and any other report made, or evidence given, by a medical expert, but that does not mean that they are the only matters to consider, still less that s.8(1) contains an exhaustive list of relevant factors. Paragraph 8(1)(g) means any other relevant matters from the medical expert's perspective, not any other matters relevant to the legal issue presented by s.11(1).
40 All that s.8(1) does is list the matters that the medical expert is obliged to address in preparing an assessment report, not the matters that the court is obliged to address, although the latter may include the former. The report is only part of the material to which the judge will have regard in deciding whether he or she is satisfied that the offender is likely to re-offend. The natural starting point will often be the sentencing remarks of the judge who imposed the custodial sentence that made the respondent to the Secretary's application an eligible offender[35] and the sentence that was imposed. That judge's assessment of the offender is likely to be of assistance. So, too, is the sentencing experience of the judge determining the application under the Monitoring Act. As judges acquire experience with this legislation, other material may be found to be helpful. The court may direct the Secretary or the offender to obtain a report of any kind to assist it in determining the application.[36] In the end what is required is an assessment by the judge of the likelihood of the person's re-offending. Sentencing judges perform that task, admittedly with less assistance, every day, when they decide what weight to give to the protection of the community or to specific deterrence or assess a prisoner's prospects of rehabilitation.[37]
41 Making appropriate adjustments, for instance acknowledging that assessment reports are clearly admissible and their makers may be cross-examined, because the Act says so, and that the burden of deciding what to do with high risk offenders has been delegated by the community to the courts, the approach in [39] - [40] above derives support from the following passage in the issues paper recently prepared by Professor Bernadette McSherry on behalf of the Sentencing Advisory Council:[38]