TSL v Secretary to the Department of Justice [2006] VSCA 199

1 The Serious Sex Offenders Monitoring Act 2005 ("the Monitoring Act") came into operation on 26th May 2005. Its main purpose, as stated in s.1, is to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who are a serious danger to the community to be subject to ongoing supervision while in the community. The sexual offences to which that section refers are later defined as "relevant offences" and listed in a schedule to the Act. They are mainly offences involving, or related to, children. They include an offence against the Crimes Act 1958 that involves sexual penetration, where the person against whom the offence is committed is a child,[1] and an offence against s.47(1) of the Crimes Act (wilfully committing, or wilfully being party to the commission of, an indecent act with or in the presence of a child under the age of 16).[2]

2 The appellant, who was then aged 24, pleaded guilty in the County Court to three counts of taking part in an act of sexual penetration with a child aged between 10 and 16 (counts 2, 6 and 9) and seven counts of an offence against s.47(1) (counts 1, 3, 4, 5, 7, 8 and 10). On 16th November 2001 he was sentenced to 12 months' imprisonment on each of counts 1, 3, 5, 8 and 10, two years' imprisonment on each of counts 2, 6 and 9 and 15 months' imprisonment on each of counts 4 and 7. Directions for cumulation and, by implication, partial concurrency, for the appellant was sentenced as a serious sexual offender on all counts,[3] resulted in a total effective sentence of four years and three months' imprisonment. A non-parole period of two years and three months was fixed and a declaration made regarding pre-sentence detention.

3 The appellant was released on parole on 13th February 2004 but, on 28th July 2004, the Adult Parole Board cancelled the parole order and the appellant was returned to prison. He completed his sentence on 7th July 2006.

4 An extended supervision order under the Monitoring Act may be made in respect of an "eligible offender". Section 4(1) provides:

"(1) Subject to sub-section (2), an eligible offender is a person -

(a) on whom a court has at any time (whether before, on or after the commencement of this Act) imposed a custodial sentence in respect of a relevant offence; and

(b) who, at the time at which an application is made under Division 1 of Part 2 for an extended supervision order in respect of him or her, is serving -

(i) a custodial sentence referred to in paragraph (a) (a 'relevant sentence');

or

(ii) another custodial sentence served concurrently with the relevant sentence or cumulatively on the relevant sentence or on another sentence that was uncompleted at the time of completion of the relevant sentence, whether that other sentence was, or those other sentences were, imposed before, at the same time or after the relevant sentence."

Sub-section (2) does not apply to the appellant.

5 Section 5 provides that the Secretary to the Department of Justice may apply to a court for an extended supervision order in respect of an offender who, at the time of the application, is an eligible offender. On 10th April 2006 the Secretary applied to the County Court for an extended supervision order in respect of the appellant. The application was made on the grounds that, if he was not made subject to such an order, there was a high degree of probability that he was likely to commit a relevant offence if released in the community on completion of his sentence. Particulars were given of the offences and sentences to which I have referred in [2] above and reference was made to his release on parole and return to prison. The relevant offences which it was said to be likely that the appellant would commit if released in the community on completion of his sentence were "sexual penetration of a child aged between 10 and 16", "indecent act with a child under 16 years" and "other offences specified in the schedule to the Act". The grounds on which that likelihood was founded were then set out. The period sought for the duration of the extended supervision order was five years.

6 The language of the application reflects the language of s.11 of the Act, the first three sub-sections of which provide:

"(1) A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.

(2) The Secretary has the onus of proving the existence of the likelihood referred to in sub-section (1).

(3) In determining whether the offender is likely to commit a relevant offence in the circumstances described in sub-section (1), the court must, subject to sub-section (5), have regard to -

(a) any assessment report filed in court, whether by or on behalf of the Secretary or the offender; and

(b) any other report made, or evidence given, by a medical expert -

and may have regard to anything else that it considers appropriate." (Emphasis added.)

Sub-sections (4) and (5) deal with notices, filed by the Secretary or the offender, disputing an assessment report or other report made to the court by a medical expert. Sub-section (6) provides for a copy of an extended supervision order to be given to the Adult Parole Board. Similar provisions apply to the review[4] or renewal[5] of an extended supervision order.

7 Parliament could have provided that the court must be satisfied, to a high degree of probability, that the offender would be a serious danger to the community if released and not made subject to an extended supervision order, but the legislature chose to be more precise. Instead of a serious danger to the community, there is the more specific test whether the offender is likely to commit a relevant offence. Having regard to the main purpose of the Monitoring Act,[6] the fact that the offender is likely to commit a relevant offence is a surrogate, or prima facie or presumptive surrogate, for his or her being a serious danger to the community. That it is only a prima facie or presumptive surrogate is suggested by the fact that the court retains a discretion not to make an order. The court "may", not "must", make an extended supervision order if it is satisfied that the offender is likely to commit a relevant offence.[7]

8 There are broadly two ways in which the words in s.11(1) that I have italicised in [6] may be read. On either view, the issue to be decided is whether the offender is likely to commit a relevant offence. That is the fact of which the court must be satisfied.[8] The first way in which the words may be read is that "high degree of probability" performs a function similar to the expressions "balance of probabilities" and "beyond reasonable doubt",[9] so that the court must be satisfied to that standard that the offender is likely to commit a relevant offence. In order to express the point simply, let us use "being reasonably sure" as shorthand for satisfaction to a high degree of probability. On the first reading of the words, they would mean that the court must be reasonably sure that the offender is likely to commit a relevant offence.[10]

9 The other reading of the italicised words in [6] takes as its starting point the fact that the meaning of "likely" varies according to the context in which it is used.[11] Because it was concerned with the future, Parliament could not require the court to be satisfied that the offender will commit a relevant offence. All that the court could be satisfied of is that the offender is likely to do so or that there is a risk that the offender will do so.[12] The ordinary meaning of likely, as explained by Mason, Wilson and Deane, JJ. in Boughey v. R.,[13] is "a substantial - a 'real and not remote' - chance". Not surprisingly, Parliament considered that threshold to be too low. The expression "to a high degree of probability" was included to show that, in this context, "likely" connotes a high degree of probability. On this second reading of the italicised words, the court must be satisfied that there is a high degree of probability that the offender will commit a relevant offence.

10 In my opinion, the second meaning is to be preferred. It is understandable that Parliamentary counsel would have chosen the word "likely" in relation to a future state of affairs but almost inconceivable that Parliament would have intended that word to bear its ordinary meaning. All too many offenders are likely, in that sense, to commit a relevant offence. A person subject to an extended supervision order is a prisoner in all but name.[14] The threshold would be far too low, in a free society,[15] if a court had a discretion to make an extended supervision order simply because it was satisfied that there was "a substantial - a 'real and not remote' - chance" of his or her re-offending. That is why the word "likely" in s.11(1) is used in the sense of a high degree of probability.

11 I desire to guard against misunderstanding. To say that "likely" is used in that sense does not mean that the Secretary must prove that it is more likely than not that a person will commit a relevant offence. Likelihood, in the ordinary sense of that word identified in Boughey v. R., includes a low degree of probability. What the legislature requires the court to be satisfied of is a high degree of probability. There is no reason to think that it must be more than 50 per cent.[16] With experience, it may be possible to be more precise, but we should always return to the words the legislature has chosen[17] and the context in which they appear.[18]

12 The conclusion that the word "likely" in s.11(1) is used in the sense of a high degree of probability accords with the main purpose of the Monitoring Act as stated in s.1. The Act is concerned with offenders who are a serious danger to the community. It also accords with the second reading speeches, which explained that the legislation was aimed at high risk offenders and offenders assessed as being at high risk of re-offending.[19] It is also the construction that the learned judge was invited to adopt. Mr Grace appeared for the Secretary below. He submitted, correctly, "[T]here is a degree of probability that [TSL] will commit a relevant offence if not subject to supervision or to an extended supervision order. The question is whether it is a high degree."[20] I readily assume that her Honour directed herself in the same way. Her decision cannot be impugned on the basis that she asked the wrong question.

13 Section 11 refers to assessment reports, which, s.7(1) explains, may be made only by a psychologist, a psychiatrist or another health service provider of a kind prescribed for the purposes of that section. Such a person is described in the Act as "a medical expert".[21] The matters that an assessment report must address are listed in s.8(1):

"(a) whether or not the offender has a propensity to commit relevant offences in the future;

(b) the pattern and progression to date of sexual offending behaviour on the part of the offender and an indication of the nature of any likely future sexual offending behaviour on his or her part;

(c) efforts made to date by the offender to address the causes of his or her sexual offending behaviour, including whether he or she has actively participated in any rehabilitation programs;

(d) if the offender has participated in any rehabilitation programs, whether or not this participation has had a positive effect on him or her;

(e) relevant background of the offender, including developmental and social factors and other offending behaviour;

(f) factors that might increase or decrease any identified risks;

(g) any other relevant matters."

Section 8(2) requires the report to state "the medical expert's assessment of the risk that the offender will commit another relevant offence if released in the community and not made subject to an extended supervision order" and the medical expert's reasons for that assessment.

14 In the present case there were two assessment reports, each by a forensic psychologist. One, prepared by Ms Karen Owen, was filed on behalf of the Secretary and the other, prepared by Mr Ian Joblin, was filed on behalf of the appellant. Mr Joblin's report updated an earlier report that he had prepared in 2001, which was also before the court together with Ms Owen's comments on Mr Joblin's report. As we shall see, the assessment reports are subject to a suppression order and the Court of Appeal made a further suppression order. Although we shall make an order permitting publication of our reasons, we should refer to the reports and other evidence with circumspection.

15 The County Court conducted a directions hearing in relation to the Secretary's application and heard submissions on 20th April and 8th and 9th June 2006. On 21st June 2006 the judge made an extended supervision order. The order declared that the court was satisfied to the requisite standard that the appellant was likely to commit a relevant offence if released in the community without being made subject to an extended supervision order. The mandatory conditions in s.15(3), referred to below, were set out and an order made, pursuant to s.42, that, until further order, no information that might enable the appellant to be identified was to be published, nor the content of the assessment reports.[22] The extended supervision order provided for its date of commencement, 7th July 2006, the period for which it would remain in force, four years, and the latest date by which the first review of the order under Division 3 of Part 2 of the Act must be undertaken, 6th July 2008. Thereafter there is to be a review at intervals of 12 months.

16 The judge published her reasons for decision on 30th June 2006. They, too, must be referred to with circumspection because they are restricted. After an introductory section[23] and references to the test in s.11(1), there was a section headed "Factors to Consider" and a section stating her Honour's conclusion and referring to the order that had been made on 21st June 2006.

17 Section 36 of the Act provides, among other things, that an offender who is subject to an extended supervision order may appeal to the Court of Appeal against the decision to make the order. Section 37 confers a right of appeal on the Secretary. Section 38(1) provides:

"(1) If the offender or the Secretary proposes to appeal under this Part, he or she must, in accordance with rules of court, give to the Court of Appeal, within 28 days after the day on which the relevant decision was made, notice of appeal setting out the grounds of the appeal."

There are no applicable rules of court. Order 12 of the Supreme Court (Criminal Procedure) Rules 1998 applies only to an application under Part 2 of the Monitoring Act. The appeal provisions are to be found in Part 3. [24]

18 In an endeavour to comply with s.38(1) the appellant filed a document with the title "The Queen v. [TSL]" headed "Notice of Application for Leave to Appeal against an Extended Supervision Order". The proper heading is "TSL v. The Secretary to the Department of Justice" and a more appropriate form of notice, if Order 2 of the Supreme Court (Criminal Procedure) Rules 1998 were to be used, would be the form for an appeal as of right under s.567(a) of the Crimes Act.[25] The Secretary rightly sought to take no advantage from these points. We should make an order nunc pro tunc correcting the title and treating the notice of application for leave to appeal as a notice of appeal pursuant to s.38(1). It clearly evinced the appellant's desire to appeal pursuant to the provisions of the Monitoring Act and was given to the Court within 28 days after the date on which the extended supervision order was made.[26]

19 The ground set out in the notice of appeal was that the judge "erred in ruling that [TSL] represented a high degree of probability of likelihood of re-offending". In a further endeavour to comply with the rules applicable to criminal appeals, and following a request from the registry, the appellant filed a full statement of grounds and an outline of submissions. The full statement consists of four paragraphs reading:

"1. The learned judge erred in finding that the appellant [TSL] constituted the serious danger to the community that was intended to be caught by the provisions of section 1 of the Act, notwithstanding that he was an 'eligible offender' as defined by section 4(1) of the Act.

2. Further, the learned judge erred in finding herself satisfied to a high degree of probability that the appellant was likely to commit a relevant offence, as defined, if released into the community at the end of his sentence and not made subject to an extended supervision order, as provided by s.11 of the Act.

3. In so ruling, the learned judge:

(i) placed too much weight upon the mandated assessment report ('the report') of Ms Karen Owen, dated the 16th March, 2006, and upon the conclusions contained therein, and, further, in the expressed clinical judgment of Ms Owen, and the deductive means by which those conclusions were reached.

(ii) failed to have regard, or sufficient regard, to the appellant's personal and offending history, and to the possibility of risk reduction by means other than an extended supervision order.

(iii) misdirected herself, in that having identified the need for, and benefits of, ongoing treatment on the part of the appellant, the learned judge substituted that need and desirability of treatment, for a statutory assessment of risk.

4. In short, the risk of re-offending presented by the appellant fell short of that risk identified by the Act as meriting intervention by means of an extended supervision order."

20 The Court gave the appeal expedition because it affects the liberty of a person who is no longer serving a sentence. ("Monitoring" is an understatement of the restrictions imposed on a person subject to an extended supervision order. He or she must comply with the conditions set out in s.15(3), which include obeying all lawful instructions and directions of the Adult Parole Board given under s.16(2). In the appellant's case the instructions and directions that have been given include instructions and directions that he is to reside at a specified extended supervision order temporary accommodation unit, which he is not permitted to leave except in the company of an approved escort. He must also adhere to a curfew, report as and when directed, not use the internet and observe ten other restrictions.[27]) The liberty of the appellant is a reason for expedition. The importance of protecting the community by orders appropriately made under the Monitoring Act is a reason for deliberation. Accordingly, whilst dealing with the matter as quickly as we could, we reserved our decision. We were conscious also that this was the first case in the Court of Appeal under the new legislation.

21 There is one other preliminary matter to which I should refer. Sections 36 and 37 contemplate appeals, by offenders or by the Secretary, in relation to decisions to make, or not to make, an extended supervision order; to renew, or not to renew, such an order; and to revoke, or not to revoke such an order on a review initiated by an offender. Each of them falls within the concept of a "relevant decision". The three different kinds of decision in relation to which an appeal may be brought - making or not making, renewing or not renewing and revoking or not revoking - explain the language of s.39, which deals with the powers of the Court of Appeal.

22 Section 39 provides:

"(1) On an appeal under this Part, the Court of Appeal may -

(a) revoke the extended supervision order or the renewed extended supervision order; or

(b) confirm the relevant decision; or

(c) if it thinks that an extended supervision order should have been made or renewed, quash the relevant decision and remit the matter to the court which made that decision, with or without any directions; or

(d) if it thinks that the extended supervision order should not have been revoked, quash the relevant decision and make an order reviving the extended supervision order.

(2) If the Court of Appeal remits a matter to a court under sub-section (1)(c), that court must make an extended supervision order in respect of the offender in accordance with this Act and any directions given by the Court of Appeal, even if the offender is not then an eligible offender because he or she is no longer serving a custodial sentence as required by section 4(1)(b).

(3) If the Court of Appeal makes an order under sub-section (1)(d), the period between the making of that order and the revocation of the extended supervision order must be taken to have been a period of suspension arising by force of section 19."

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]

"Preventive detention schemes rely on assessments of risk. While mental health professionals who give evidence in court about offenders' risk are often cross-examined, there is some question about whether such evidence should be admitted at all. These assessments of risk tend to be taken out of their primary context, which is one of treatment and intervention. There is also the potential for judges and juries to misunderstand and misuse risk assessments, assigning greater accuracy and inevitability to predicted behaviours than is warranted. ...

As well as having difficulties with accuracy, predictions of risk may be seen as providing a veil of science over what is essentially a social and moral decision about the kind of offender who creates the greatest fear within the community. Asking mental health professionals to assess the risk of future harm shifts the burden of deciding what to do with such offenders from the community to clinicians whose primary role lies within the medical model of treatment, rather than within the criminal justice model of punishment and community protection." (Footnotes omitted.)

I refer also to what Kirby, J. said in his dissenting judgment in Fardon v. Attorney-General (Qld)[39] about the unreliability of predictions of criminal dangerousness and the tendency of mental health professionals, who are primarily concerned with treatment and intervention, to overpredict recidivism.

42 It is for those reasons that Parliament has conferred the responsibility for deciding whether or not to make an extended supervision order on judges experienced in sentencing, assisted but not constrained by assessment reports and medical evidence.

43 Because the judge focused unduly on the matters listed in s.8(1), but did have a body of evidence on which to proceed, the order that would be in the interests of justice, weighing both the interests of the appellant and those of the community, would be an order continuing the extended supervision order on an interim basis and remitting the Secretary's application to the County Court differently constituted; but, as I have explained, the Act gives us no power to make an interim order or, where an extended supervision order has been made, to send the matter back for reconsideration in accordance with our reasons. We are required either to revoke the order or to confirm it. In some cases we could, with sufficient confidence, assess the evidence for ourselves and say that the decision was right or wrong, but this is not such a case. We are therefore faced with a choice of evils. If the appellant were a serial paedophile of the kind to whom the Minister referred in his second reading speech, the lesser evil would be to confirm the order even though Ms Owen focused on only two aspects of the parole breach to the exclusion of the circumstances in which it was committed and even though the judge erred; but the appellant is far

removed from that category.[40] The lesser evil, in the circumstances of this case, is to revoke the extended supervision order.[41]

44 I propose the following orders:

1. The title of the proceeding is amended nunc pro tunc to read "TSL v. The Secretary to the Department of Justice".

2. The document headed "Notice of Application for Leave to Appeal against an Extended Supervision Order" filed on 18th July 2006 is treated as a notice of appeal, pursuant to s.38 of the Serious Sex Offenders Monitoring Act 2005, given to the Court of Appeal on that date.

3. The extended supervision order made by the County Court on 21st June 2006 in respect of the appellant is revoked, except the suppression order in paragraph 4 thereof.

4. Notwithstanding that suppression order and the further suppression order made by the Court of Appeal on 18th September 2006,[42] the reasons for judgment of the Court of Appeal on 26th September 2006 may be published.

45 I agree with Callaway, A.P. The County Court judge appears to have

considered only the matters set out in s.8(1)[43] of the Serious Sex Offenders Monitoring Act 2005 as if her Honour's task were to review the assessment reports prepared by Ms Owen and Mr Joblin. For the reasons stated by Callaway, A.P. I am of the opinion that such an approach was mistaken. Her Honour was required to determine whether the appellant should be the subject of an extended supervision order after considering all relevant matters, including the assessment reports.

46 I also agree with Callaway, A.P.'s analysis of s.11 and his comments with respect to the shortcomings of s.39 of the Act.

47 I agree with the disposition of this matter proposed by Callaway, A.P. for the reasons advanced by his Honour.

[1] Item 1 in the schedule.

[2] Item 8 in the schedule.

[3] The appellant admitted three previous convictions for indecent assault, from one court appearance in 1996. They satisfied the requirements of Item 1(a)(ii) of Schedule 1 to the Sentencing Act 1991. See Part 2A and, in particular, s.6E, of that Act. The sentencing remarks, as well as the order, clearly evince an intention to provide for partial concurrency.

[4] Section 23.

[5] Section 24.

[6] See [1] above.

[7] If there were any doubt about that, s.45 of the Interpretation of Legislation Act 1984 provides that, where the word "may" is used in conferring a power, it means that the power may be exercised, or not, at discretion**.** See also R. v. Moffatt [1998] 2 V.R. 229 at 234 per Winneke, P. and 246 - 247 per Hayne, J.A.

[8] Section 12(1) accordingly provides that an extended supervision order must state that the court making it is satisfied that the offender is likely to commit a relevant offence if released in the community in the circumstances referred to in s.11(1).

[9] That is the function of those words, in a different context, in s.13(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Mr Grace, who referred us to Fardon v. Attorney-General (Qld) [2004] HCA 46; (2004) 78 A.L.J.R. 1519 at 1563 [225] in support of his submissions, rightly cautioned that the Queensland legislation was not the same. The same phrase in a different collocation of words is apt to have a different meaning.

[10] I should add that this sentence illustrates the danger of using shorthand. It obscures the objection that the first reading in fact involves "a probability of a likelihood".

[11] Boughey v. R. [1986] HCA 29; (1986) 161 C.L.R. 10 at 20.

[12] See, for example, "will commit", in connection with the word "risk", in s.8(2)(a).

[13] At 21.

[14] See [20] below.

[15] Compare s.7(2) of the Charter of Human Rights and Responsibilities. The Charter of Human Rights and Responsibilities Act 2006 is not yet in force, but the nature of our society is a legitimate factor to take into account in construing the legislation.

[16] Appendices 6 and 10 to the Static-99 Coding Rules (revised ed. 2003), explained at 57 under the heading "Scoring the Static-99 & Computing the Risk Estimates", suggest that it would be unworkable if "likely" connoted a probability of more than 50 per cent.

[17] Compare McKinnon v. Secretary, Department of Treasury [2006] HCA 45 at [60] per Hayne, J. and see the cases referred to by Kirby, J. in Central Bayside General Practice Association Ltd. v. Commissioner of State Revenue [2006] HCA 43 at fn.64.

[18] In s.18B(1) of the Sentencing Act the words "high degree of probability" connote a standard of proof between the balance of probabilities and the criminal standard, but both the collocation of the words and the nature of the enquiry are different. Section 18B directs the attention of a sentencing judge to the question whether the offender is, at present, a serious danger to the community: see R. v. Carr [1996] VicRp 43; [1996] 1 V.R. 585 at 592. Section 11(1), like s.8 and the Monitoring Act as a whole, directs attention to the question whether the offender is likely to commit a relevant offence in the future. Both the context and the function of the words are different.

[19] Hansard, Legislative Assembly, 22nd February 2005, at 9 and 10; Hansard, Legislative Council, 24th February 2005, at 14 and 15.

[20] Similarly, the outline of submissions filed on behalf of the Secretary in this Court said, "The appellant concedes that he was at risk of re-offending. ... The issue is the degree of risk or, in the terms of s.11(1), whether there is a 'high degree of probability'."

[21] Section 3.

[22] There are limited exceptions in favour of the Secretary and the Chief Commissioner of Police.

[23] Both her Honour's reasons and Ms Owen's report misdescribed two of the offences, probably those the subject of counts 4 and 7, as "indecent assault with a child under 16 years". The misdescription is not material in this case.

[24] Order 2 does not apply either. Section 26 of the Monitoring Act provides that proceedings on an application under Part 2 are criminal in nature, except as otherwise provided by the Act. An appeal under Part 3 is therefore an appeal from a criminal proceeding, but it is not an appeal under Part VI of the Crimes Act. That is why the Court wears black robes, not red.

[25] Form 6-2A, although even that would require considerable modification.

[26] Section 38(2) requires the appellant to cause a copy of the notice of appeal to be served on the respondent as soon as practicable after giving notice of appeal to the Court of Appeal. That was not done in this case, but it should be done in future.

[27] Section 40 makes failure to comply punishable by up to five years' imprisonment.

[28] In other words, there would have been a paragraph saying that, if the Court of Appeal thinks that an order should have been made or renewed, it may either confirm the relevant decision or quash the decision and remit the matter to the court below with directions.

[29] The Adult Parole Board is not bound by the rules of natural justice. The exclusion of the rules of natural justice is in s.69(2) of the Corrections Act 1986 and applies to the functions conferred on the Board by the Monitoring Act.

[30] See [7] above.

[31] [1936] HCA 40; (1936) 55 C.L.R. 499.

[32] See Williams, Civil Procedure - Victoria, at [64.01.120].

[33] Section 15(2)(b).

[34] Hansard, 22nd February 2005, at 9.

[35] Section 4.

[36] Section 10(6)(a).

[37] Compare Fardon v. Attorney-General (Qld) at 1563 [226] per Callinan and Heydon, JJ.

[38] High-risk Offenders: Continued Detention and Supervision Orders, Community Issues Paper, Sentencing Advisory Council, August 2006. I am indebted to the Secretary who, through her counsel, provided us with a copy of Professor McSherry's paper.

[39] At 1542 [124].

[40] The seriousness of the offences that made the appellant an eligible offender may be gauged, in part, by the sentence that was imposed in 2001. In 1996 he was sentenced to a combination of a suspended sentence and a community-based order. He complied with the terms of the community-based order and did not breach the suspended sentence. See also [32] and [36] above.

[41] Parliament might give consideration to amending s.39 so that the Court of Appeal may make such order as it thinks fit, including but not limited to the orders mentioned in s.39(1)(a), (b), (c) and (d). There would also need to be power to continue an extended supervision order, with or without modification, on an interim basis. Although the point has not arisen in this appeal, it would be useful for the Court of Appeal to have power to extend the period of 28 days mentioned in s.38(1) either before or after that period has expired.

[42] The Court prohibited the publication of the content of any report or other document put before it on the appeal and any information that might enable the appellant to be identified.

[43] As Callaway, A.P. has pointed out, the "other relevant matters" referred to in paragraph 8(1)(g) are those matters relevant to the assessment to be made by the medical expert.