• DIRECTOR’S POLICY •
CONTINUED DETENTION
12 November 2015
Contents
Introduction ___________________________________________________ 3
Overview of the SSODSA ___________________________________________ 3
Purpose of the SSODSA ____________________________________________ 3
Role of the Director under SSODSA________________________________ 3
Detention Order Referrals to the DPP ______________________________ 3
Exercise of DPP discretion __________________________________________ 4
Detention Order Applications _____________________________________ 4
DPP as Applicant __________________________________________________ 4
Unacceptable risk test – first stage of test [s.35(1)] _______________________ 5
Unacceptable risk test – second stage of test [s.36(1)] ____________________ 6
Burden of Proof ___________________________________________________ 6
Standard of Proof _________________________________________________ 6
Period of Detention Orders __________________________________________ 7
Interim Detention Order Applications ______________________________ 7
DPP as Applicant __________________________________________________ 7
Purpose of Interim Detention Order __________________________________ 7
Exercise of DPP Discretion __________________________________________ 8
Orders that can be made – Discretion of the Court ______________________ 8
Certificate of Available Resources _________________________________ 8
Publication Orders and Non-Publication Orders in Detention Order
Proceedings ___________________________________________________ 8
S.183 Publication Orders ___________________________________________ 8
S.184 Non-Publication Orders _______________________________________ 9
DPP Reporting Obligations _______________________________________ 9
DIRECTOR’S POLICY ON CONTINUED DETENTION
1
Compatibility with the Charter of Human Rights and Responsibilities Act
2006 ________________________________________________________ 10
Interrelationship with Indefinite Sentence Applications _______________ 10
Existing power of the Court to impose an indefinite sentence _____________ 10
Test to be applied _________________________________________________ 11
Use of indefinite Sentences in Victoria________________________________ 11
Use of the continued detention scheme at the expiry of an indefinite sentence 12
Breach of a Supervision Order ___________________________________ 13
Offence to breach order ___________________________________________ 13
The Secretary or Victoria Police as Applicant _________________________ 13
Role of DPP where breach proceedings are initiated by Victoria Police ____ 13
DPP’s power to directly indict an offender ____________________________ 13
Indictable or summary stream? _____________________________________ 14
Is a CCO an available sentencing disposition? ______________________ 15
Publication Orders and Non-Publication Orders in Breach Proceedings _ 16
s.183 Publication Orders ___________________________________________ 16
s.184 non-publication orders________________________________________ 17
Review of policy _______________________________________________ 17
DIRECTOR’S POLICY ON CONTINUED DETENTION
2
Introduction
This document is the Director of Public Prosecutions’ (‘DPP’) Policy regarding
Continued Detention.
Overview of the SSODSA
The Serious Sex Offenders (Detention and Supervision) Act 2009 (‘SSODSA’)
commenced operation on 1 January 2010 and puts into place a new scheme of
continued detention in custody for high risk sex offenders beyond the term of
their sentence.
The SSODSA provides a two-tier scheme, with one tier for the post-sentence
detention of high-risk sex offenders, for those offenders who cannot safely be
supervised in the community and a second tier providing supervision for high
risk offenders who can safely be supervised in the community but who require
post-sentence supervision.
Purpose of the SSODSA
Section 1 of the SSODSA provides that the main purpose of the SSODSA is
to enhance the protection of the community by requiring offenders who have
served custodial sentences for certain sexual offences and who pose an
unacceptable risk of harm to the community to be subject to either a detention
or supervision order.
Facilitation of treatment and rehabilitation of offenders is the secondary
purpose of the SSODSA, so as to reduce the risk of harm to the community.
Role of the Director under SSODSA
The DPP is the Applicant in all detention order applications and interim
detention order applications, made under ss.33 and 51 of the SSODSA.
The DPP can also apply for periodic reviews of a detention order under s.66 of
the SSODSA.
The DPP is also responsible for prosecuting serious breaches of supervision
orders pursuant to s.160 of the SSODSA.
Detention Order Referrals to the DPP
Any person who falls within the definition of ‘eligible offender’ under s.4(1) of
the SSODSA may be considered for a detention order.
In simple terms, any person over the age of 18 years, who has been sentenced
to a custodial sentence in respect of a ‘relevant offence’ will fall within the
definition of ‘eligible offender’. There are other categories of ‘eligible
offenders’ relevant to the DPP’s role as applicant for detention orders,
including s.4(3) of the SSODSA which provides that a person is an ‘eligible
DIRECTOR’S POLICY ON CONTINUED DETENTION
3
offender’ in relation to an application for a detention order if the person is
subject to a supervision order or an interim order.
If the Secretary of the Department of Justice and Regulation (‘the Secretary’)
considers that an application should be made for a detention order, the
Secretary must refer the matter to the DPP for consideration under s.105 of the
SSODSA.
Exercise of DPP discretion
Nothing in the SSODSA requires the DPP to apply for a detention order in
respect of an ‘eligible offender’ [s.105(5)].
The decision to apply for a detention order in respect of an ‘eligible
offender’ rests with the DPP and will be decided on a case-by-case basis.
The following considerations are relevant to the DPP’s decision:

The level of risk of an eligible offender, as contained in the
assessment report (or progress report in the case of a review or
renewal application);

The sentencing remarks of the sentencing judge in respect of a
relevant sentence;

The eligible offender’s criminal history;

The primary purpose of the SSODSA (being the protection of
the community); and

Any other matter the DPP considers relevant.
The DPP’s decision whether or not to make an application for detention is also
governed by the criteria set out in the Director’s policy on Prosecutorial
Discretion (DPP Policy 2). The Director will consider whether there is a
reasonable prospect of success and whether making an application for
detention is required in the public interest. If the DPP determines not to apply
for a detention order, the DPP may refer the matter back to the Secretary
[s.105(6)]. On referral back to the Secretary, or on the determination of the
DPP not to apply for a detention order, the Secretary may determine that an
application should be made for a supervision order or not to proceed with the
matter [s.105(7)].
Detention Order Applications
DPP as Applicant
If the DPP has determined to apply for a detention order under Part 8 of the
SSODSA, s.33 provides that the DPP may apply to the Supreme Court to make
a detention order in respect of a person who is an eligible offender.
DIRECTOR’S POLICY ON CONTINUED DETENTION
4
It is the DPP’s Policy that once the DPP has determined to make an
application for a detention order, this position is to be maintained unless
circumstances arise which cast serious doubt in relation to the correctness
of this decision.
Unacceptable risk test – first stage of test [s.35(1)]
As explained by Forrest J in Director of Public Prosecutions v JPH (No. 2)
[2014] VSC 1771 (paras 17-18) applications for detention orders involve a two
stage process.
Section 35(1) – the Supreme Court must first be satisfied that the offender
poses an unacceptable risk of committing a relevant offence of a detention
order or supervision order is not made and the offender is in the
community. This first stage of the test looks as to whether the person is an
unacceptable risk if neither a detention order nor supervision order were made
and the offender is in the community.
Section 35(1) of the SSODSA provides that in determining whether the
offender is likely to commit a relevant offence, the Supreme Court must have
regard to any assessment report filed by the DPP or offender, any other report
and anything else the Court considers appropriate.
The Court of Appeal considered the meaning of “unacceptable risk” in the
recent case of Nigro v Secretary to the Department of Justice [2013] VSCA
213.2 The question of whether a risk is unacceptable depends upon the degree
of likelihood of offending and the seriousness of the consequences if the risk
eventuates: see Nigro at [125].3 The risk assessment report (normally
conducted by a psychologist or psychiatrist) will ordinarily be at the centre of
any court evaluation of the level of risk (Nigro at [124]).4 The level of risk
need not be more likely than not. A risk may be unacceptable in a particular
case even where the risk is moderate and equates with the average sex offender
risk (Nigro at [125]).5 An assessment of the gravity of the consequences will
usually be the critical factor. As the Court explained in Nigro at [130]:
It is the gravity of the consequences of the offence which the offender is at risk
of committing which will ordinarily be the critical factor in the assessment of
whether that risk is ‘unacceptable.’ That gravity will depend upon the
offender’s likely conduct, which in turn depends upon an evaluation of the
particular circumstances which pertain to that offender and not upon
generalisations about the general character of the offence or the sentences
which are attracted by a relevant offence.6
1
http://www.austlii.edu.au/au/cases/vic/VSC/2014/177.html.
http://www.austlii.edu.au/au/cases/vic/VSCA/2013/213.html.
3
Ibid.
4
Ibid.
5
Ibid.
6
Ibid.
2
DIRECTOR’S POLICY ON CONTINUED DETENTION
5
The threshold test need not be confined to one offence. The Court may
conclude that the offender poses an unacceptable risk of committing a range of
relevant offences: Nigro [131].7
Unacceptable risk test – second stage of test [s.36(1)]
If the Court is satisfied that the unacceptable risk set out in s.35(1) exists, the
Court, before making a detention order, must also be satisfied that the risk of
the offender committing a relevant offence would be unacceptable unless a
detention order were made (second stage of the test) [s.36(1)].
In determining whether the risk would be unacceptable unless a detention order
were made, the Court may have regard to the means of managing the risk.
This stage looks at whether the risk could be rendered acceptable by other, less
restrictive, means such as a supervision order. If not satisfied that it would be
unacceptable, the Court is empowered to make a supervision order [s.36(4)] –
divisions 2-4 of Part 2 then apply [s. 36(6)] including the requirement to hear
submissions relating to conditions [s.21]. At this stage the court may consider
the impact of a detention order on the offender (see DPP v JPH at [30]-[32]),8
and must balance this against the risk.
At both stages of the test, a risk may be unacceptable even if the likelihood that
the offender will commit a relevant offence is less than a likelihood of more
likely than not [s.35(4) and s.36(2)].
Burden of Proof
The burden of proof is on the DPP as Applicant [s.35(5)]. The DPP bears the
onus of satisfying the requirements (DPP v JPH at [19]).9
Standard of Proof
Section 39 of the SSODSA provides that the Supreme Court may decide that it
is satisfied that a person is an unacceptable risk (pursuant to s.35(1) or s.36(1))
only if the Court is satisfied:
(a)
by acceptable, cogent evidence; and
(b)
to a high degree of probability
that the evidence is of sufficient weight to justify the decision.
Section 9, which relates to supervision order proceedings but is almost
identical to s.39, was considered at length by the Court of Appeal in Nigro.
The Court of Appeal interpreted s.9 as follows:
7
Ibid.
As above at [1].
9
Ibid.
8
DIRECTOR’S POLICY ON CONTINUED DETENTION
6
“The evaluative task requires the court to assess the degree of likelihood of
the occurrence of risk and the nature of the risk and its consequences. These
matters must be established by cogent acceptable evidence having regard to
the seriousness and gravity of the decision to be made. The court must be
satisfied to a high degree of probability that the offender poses an
unacceptable risk.” [167]10
It is the DPP’s Policy that the Court of Appeal decision in Nigro also
applies to s.39 and the assessment of unacceptable risk during a detention
order application.
It is the DPP’s Policy that s.39(b) establishes a ‘high degree of probability’
standard of proof for both stages of the unacceptable risk test. As noted by
the Court of Appeal in Nigro at [156],11 this involves a standard well above the
civil standard and approaching the criminal standard.
The evidence supporting such a standard of proof, must be acceptable and
cogent evidence (s.39(a)). It is the DPP’s Policy that this reflects the
Briginshaw principle which is relevant in evaluating the quality and
sufficiency of the evidence.
Period of Detention Orders
The period of a detention order cannot exceed 3 years [s.40].
It is the DPP’s Policy to make an application for a detention order for the
maximum period of 3 years. The Court has the discretion to impose a
detention order of shorter duration.
Interim Detention Order Applications
DPP as Applicant
Under s.51 of the SSODSA, the DPP may apply to the Supreme Court for
an interim detention order in respect of an offender who is the subject of an
application under s.33 for a detention order or an application under s.45 for
renewal of a detention order.
Purpose of Interim Detention Order
The purpose of an interim detention order is to provide for the detention of an
offender if his or her custodial sentence will end before the determination of
the application for a final order for detention. An interim detention order can
also be made when an application for renewal of a detention order has been
made but the detention order has expired or will have expired before that
application can be determined.
10
11
As above at [2].
Ibid.
DIRECTOR’S POLICY ON CONTINUED DETENTION
7
Exercise of DPP Discretion
It is the DPP’s Policy to apply for an interim detention order in the
following circumstances:

it appears likely the Court will not be able to hear and
determine the substantive detention order application before
the expiry of an offender’s sentence;

the Respondent is seeking an interim supervision order/the
renewal of an interim supervision order until the substantive
detention order application is determined by the Court (for
example, in circumstances where the Court has to adjourn
the hearing of the substantive detention order application
and there is a need for an interim measure).
Orders that can be made – Discretion of the Court
Section 54(2) provides that if the DPP has applied for a detention order or
renewal of an order, the Supreme Court may make an interim supervision order
if it considers that an interim detention order is not justified.
It is the DPP’s Policy not to consent to an interim supervision order, even
if the Court determines that an interim detention order is not justified.
Certificate of Available Resources
It is the DPP’s policy that if there is an issue with available resources, ie.
available/unavailable treatment programs, accommodation or facilities, a
Certificate of Available Resources should be filed with the Supreme Court
at the outset of the detention order application in the event that the Court
imposes a supervision order in place of a detention order by virtue of s.36(4) of
the SSODSA.
It is the DPP’s policy to keep a Certificate of Available Resources confined
to the availability or otherwise of a resource as opposed to the suitability
or otherwise of a certain resource. The issue of suitable resources should be
put to the court by way of evidence.
Publication Orders and Non-Publication Orders in
Detention Order Proceedings
Most of what occurs in a detention order proceeding is prohibited from being
published pursuant to s.182 of the SSODSA.
Section 183 Publication Orders
An application for a publication order can be made under s.183 of the
SSODSA.
DIRECTOR’S POLICY ON CONTINUED DETENTION
8
If a detention order is made by the Supreme Court, it is the DPP’s policy that a
publication order under s.183 of the SSODSA is only required in circumstances
where a person other than the Court wishes to publish the Court’s reasons or
the content of any report tendered, or any evidence given in the proceeding, or
any information that may identify a witness in a proceeding or a victim of a
relevant offence committed by the offender (Jack Heath (A Pseudonym) v The
Queen [2014] VSCA 319).12
S.184 Non-Publication Orders
If the offender makes an application under s.184(2) of the SSODSA to restrict
publication of his identity and whereabouts, the Crown will generally not
oppose the application.
Section 184(1) of the SSODSA requires the court to be satisfied that it is in the
‘public interest’ to make a non-publication order, having regard to the matters
outlined in section 185 of the SSODSA, namely:
(a)
(b)
(c)
(d)
(e)
Whether the publication would endanger the safety of any person;
The interests of any victims of the offender;
The protection of children, families and the community;
The offender’s compliance with any order made under this Act;
The location of the residential address of the offender.
The Crown may, however, oppose an offender’s application for nonpublication on the basis of s.185(c) or s.185(d) of the SSODSA, if the facts of
the case cause the DPP to have particular concern in respect of these issues.
It is the DPP’s policy that in the court’s assessment of where the public
interest lies, the primary legislative purpose of community protection
ought be given the greatest emphasis.
It is the DPP’s policy that, in some cases, the most effective means of
protecting the community is for the court not to make a s.184(1) nonpublication order, having regard to:
(a) the fact that publication of the offender's name will serve to put the
community on notice of his release; and
(b) the offender's history of non-compliance with supervision order
conditions.
The DPP will also give serious consideration to the views of any victim in
respect of non-publication.
DPP Reporting Obligations
If the Supreme Court either makes a detention order or interim detention order
or renews a detention order, the DPP must cause a copy of the order to be
12
http://www.austlii.edu.au/au/cases/vic/VSCA/2014/319.html.
DIRECTOR’S POLICY ON CONTINUED DETENTION
9
given as soon as practicable to the Secretary and the Adult Parole Board
(‘APB’) [s.43, s.60(2) and s.49 respectively].
The DPP must notify the Secretary as soon as practicable if an indefinite
sentence is imposed on an offender who is subject to a supervision order [s.26].
The DPP must give notice of an application to each person included on the
Victims Register established under the Corrections Act 1986 [s.94].
Compatibility with the Charter of Human Rights and
Responsibilities Act 2006
If Charter issues are raised by the Respondent, the Respondent must serve
Charter Notices on the Attorney-General of Victoria and the Victorian Equal
Opportunity and Human Rights Commission pursuant to s.35 of the Charter.
The Attorney-General of Victoria may intervene under s.34(1) of the Charter
and make submissions in relation to the operation of the Charter for the
purpose of the Respondent’s application13.
It is the DPP’s Policy to adopt the submissions made by the AttorneyGeneral of Victoria in relation to the operation of the Charter for the
purpose of a detention order application.
Interrelationship with Indefinite Sentence Applications
Existing power of the Court to impose an indefinite sentence
Under s.18A(5) of the Sentencing Act 1991, a court can impose an indefinite
sentence on an offender following an application by the DPP or on the court’s
own initiative.
Indefinite sentences are sentences of an indefinite length that can be imposed
for certain serious offences, such as murder, manslaughter, rape, assault with
intent to rape, incest and serious sexual offences against children. The offender
must be 21 years or older at the time of sentence [s.3(1) Sentencing Act 1991].
The court must specify a nominal sentence, after which time the offender’s
sentence is reviewed and the offender may be discharged from the sentence.
[s.18A(2) and s.18H(1) Sentencing Act 1991].
If the court is no longer satisfied that the offender poses a danger to the
community, the court must discharge the sentence and order the offender to be
subject to a five-year reintegration program administered by the APB [s.18M
Sentencing Act 1991].
13
View the Statement of Compatibility at:
http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/PubPDocs_Arch.nsf/5da7442d8f
61e92bca256de50013d008/ca2570ce0018ac6dca257933007b9960!OpenDocument
DIRECTOR’S POLICY ON CONTINUED DETENTION
10
Test to be applied
The court must be satisfied to a high degree of probability that the offender is
‘a serious danger to the community’ before imposing an indefinite sentence.
The Court of Appeal has found that this test sets a higher bar than the
‘unacceptable risk’ test under the SSODSA (Carolan v The Queen [2015]
VSCA 167 at [81]).14
The offender’s danger to the community is determined having regard to his or
her past behaviour, existing character and other special circumstances, rather
than on predictions of the likelihood that he or she will reoffend in the future
[s.18B(1) Sentencing Act 1991].
Use of indefinite Sentences in Victoria
As at October 2015, five offenders in Victoria have been sentenced to an
indefinite sentence, one of whom successfully appealed and received a fixedterm sentence. All five offenders had committed sexual offences (that
would now fall within the definition of ‘relevant offence’ under the
SSODSA) and had previous convictions for such relevant offences.
The Court of Appeal concluded in the recent decision of Carolan15 that:
“where the risk posed by the appellant can be managed by means other than
an indefinite sentence – including, in particular, by use of the SSODSA regime
of supervision and detention – it should be. We should guard against the
‘banalisation of indefinite imprisonment’” (at paragraph [97]).
Although the Court of Appeal decision of Carolan does not abolish the use of
indefinite sentences in Victoria, the Court of Appeal makes it clear that the
indefinite sentence provisions should only be used when the offender’s risk
cannot be managed by means other than an indefinite sentence.
It is the DPP’s policy that the Carolan decision has effectively abolished
the use of indefinite sentences in respect of offenders who fall within the
definition of an ‘eligible offender’ under the SSODSA scheme.
Consequently, it is the DPP’s policy to only consider an application for an
indefinite sentence in respect of an offender who falls within the ‘eligible
offender’ definition under the SSODSA, in the following specific
circumstances:

14
15
if an eligible offender is being sentenced in respect of a serious,
violent offence in addition to a relevant offence under the
SSODSA; and the offender has a history of repeat, serious,
violent and/or sexual offending;
http://www.austlii.edu.au/au/cases/vic/VSCA/2015/167.html.
Ibid.
DIRECTOR’S POLICY ON CONTINUED DETENTION
11

when an offender is subject to a supervision order or detention
order under the SSODSA and the offender breaches the postsentence order by way of a serious breach (ie. by committing a
relevant offence or repeated non-compliance with an
administrative condition) in addition to the commission of a
serious criminal offence.
The DPP must also be satisfied that there is a reasonable prospect of satisfying
the court that the offender is a ‘serious danger to the community’, as required
under the indefinite sentence provisions, before applying for an indefinite
sentence. [See DPP Policy 4.9.1 in relation to Indefinite Sentence
Applications.]
Use of the continued detention scheme at the expiry of an indefinite
sentence
The DPP will not generally apply for a detention order at the completion
of an offender’s 5 year reintegration program (at the end of serving an
indefinite sentence) if the offender has been found by the court not to be a
serious danger to the community and can be said to have been successfully
reintegrated into the community. However, if there is evidence to suggest
that an offender has not been successfully reintegrated back into the
community and continues to be a high risk of committing a relevant
offence and the DPP is of the view that a supervision order is insufficient
to contain the offender’s risk of re-offending, it is the DPP’s Policy to
consider making an application for post-sentence detention under the
SSODSA.
In Carolan16 the Court of Appeal found that under the SSODSA scheme it
was only a theoretical possibility that an offender in the position of the
appellant would be released unsupervised into the community (see
paragraph [97]), and having regard to the appellant’s danger to the community,
the Court of Appeal was satisfied that “upon the expiration of his custodial
sentence, the Secretary or the Director will apply for a detention order or a
supervision order under the SSOSDA..” (paragraph [94]).
It may be that there are certain cases where the Secretary considers it
appropriate to apply for a supervision order, that is, if the Secretary is of the
view that an offender still requires some level of management and supervision
in the community (by the imposition of conditions) at the completion of the 5
year reintegration program. This is a matter for the Secretary.
It is the DPP’s Policy to liaise with the Secretary in relation to the status of
all indefinite sentences and to notify the Secretary of the completion date
of an offender’s 5 year reintegration program.
16
Ibid.
DIRECTOR’S POLICY ON CONTINUED DETENTION
12
Breach of a Supervision Order
Offence to breach order
Section 160 of the SSODSA provides that an offender must not, without
reasonable excuse, fail to comply with a condition of a supervision order or
interim supervision order. The offence carries a maximum penalty of Level 6
imprisonment (5 years) and is an indictable offence [s.112 Sentencing Act
1991].
The Supreme Court or the County Court may, if it made the supervision order
or interim supervision order, grant a summary hearing of an offence against
s.160 [s.172(5)] in which case the offence carries a maximum penalty of Level
7 imprisonment (2 years).
The Secretary or Victoria Police as Informant
Section 172 of the SSODSA provides that breach proceedings may only be
initiated by either the Secretary or Victoria Police by the filing of a chargesheet.
Role of DPP where breach proceedings are initiated by Victoria
Police
Under s.22 of the Public Prosecutions Act 1994, the DPP’s functions include:

to institute, prepare and conduct on behalf of the Crown,
proceedings in the High Court, Supreme Court or County Court
in respect of an indictable offence; and

to take over and conduct any proceedings in respect of any
summary or indictable offence.
As Victoria Police does not prosecute matters in the higher courts the DPP
assumes responsibility for breach proceedings initiated by Victoria Police and a
brief is forwarded to the OPP in the usual way.
DPP’s power to directly indict an offender
It is the DPP’s policy that s.172 of the SSODSA does not limit the
jurisdiction of the DPP to file an indictment in accordance with his
functions in s.22 of the Public Prosecutions Act 1994 and the power in s.159
of the Criminal Procedure Act 2009.
It is the DPP’s policy that the procedure set out in s.172A of the SSODSA
applies to proceedings commenced by the Secretary or a police officer
under s.172 and does not preclude the DPP from filing an indictment in
the County Court or Supreme Court in accordance with s.160 of the
Criminal Procedure Act 2009.
DIRECTOR’S POLICY ON CONTINUED DETENTION
13
DPP’s position in relation to bail
Section 171(2) of the SSODSA provides that “a person who is arrested under
s.171 must as soon as practicable be remanded in custody or released on bail
in accordance with the requirements of the Bail Act 1977”.
A significant amendment to the Bail Act 1977 commenced operation on 14
October 2015. If it is alleged that an offender commits an indictable offence
while on a supervision order or interim supervision order under the SSODSA,
there is no longer a presumption in favour of bail. The offender must show
cause why his detention in custody is not justified (s.4(4)(cd) Bail Act 1977).
In accordance with the DPP’s Policy in relation to Bail (see DPP’s Policy 53),
if the accused is charged with an offence whereby the court shall refuse bail
unless the accused shows cause why his or her detention in custody is not
justified,17 the prosecution cannot consent to bail. The onus is on the
accused to show cause why his or her detention in custody in not justified.
Once the court is so satisfied, the prosecution may discuss bail conditions.
Further, it is the DPP’s policy for the bail prosecutor to bring to the
court’s attention the fact that an offender subject to a supervision order or
interim supervision order has already been found to be an unacceptable
risk of committing a relevant offence.
Indictable or summary stream?
A breach of supervision order charge brought under s.160 is an indictable
charge however the Court may grant a summary hearing pursuant to s.172(5)
of the SSODSA.
In determining whether a breach of supervision order charge should proceed in
the indictable or summary stream, it is the DPP’s Policy to give consideration
to the following specific criteria:
17

Where a breach involves the commission of a ‘relevant’
sexual offence (for the purposes of Schedule 1 of the SSODSA)
it is the DPP’s Policy that, in the absence of exceptional
circumstances, summary jurisdiction will be opposed.

In other circumstances, regard should be had to –
o
whether the offending conduct was preparatory to the
commission of a ‘relevant’ offence or an offence with
sexual elements;
o
in circumstances where there is insufficient evidence
to characterise the offending conduct as preparatory,
whether it is nevertheless consistent with a disturbing
Bail Act 1977 s.4(4).
DIRECTOR’S POLICY ON CONTINUED DETENTION
14
pattern of conduct employed by an offender prior to or
in the course of previous offending;
o
the accused’s history of compliance with the terms of
the supervision order, taking into account the
seriousness of past breaches of the order;
o
whether the offending conduct involved victims
and/or contact with children, including victims of a
previous offence;
o
whether the offending conduct was committed in the
course of the commission of other indictable offences;
and
o
whether there is present any other factor tending to
categorise the offence as being sufficiently serious to
warrant the charge being determined indictably.
See also DPP’s Policy 7.2.1 Indictable Offences Triable Summarily for general
criteria to be considered in determining whether it would be appropriate for an
indictable offence to be tried summarily.
Is a CCO an available sentencing disposition?
The DPP’s policy regarding the Crown’s role on plea and sentence hearings
has been substantially updated following the Court of Appeal’s guideline
judgment in Boulton v R [2014] VSCA 34218 (the ‘CCO Guideline Case’) (see
DPP Policy 4.7.1). In this policy, the DPP makes clear that the Crown is duty
bound, where circumstances demand, to make both sanction submissions and
inadequacy submissions.
It is the DPP’s policy that the prosecutor should offer a sanction
submission in every case and, in cases where the judge gives an indication of
an anticipated sentence and the prosecutor perceives or has instructions that
this kind of sentence would be manifestly inadequate; or the defence has
proposed a sentencing range or sought a particular sentence that, if the
submission was accepted, would result in a manifestly inadequate sentence, the
prosecutor should make an inadequacy submission.
Whilst acknowledging the standards modifying declaration made by the Court
of Appeal in Boulton,19 calling for a “re-examination” of “the conventional
wisdom about the types of offending which ordinarily attracts a term of
imprisonment” (see Boulton at [103], [105], [133] and Guideline paragraphs
[2], [25], [30]),20 it is the DPP’s policy that a CCO is an inadequate
sentence in respect of a proven breach of supervision order under s.160 of
the SSODSA, having regard to the following:
18
http://www.austlii.edu.au/au/cases/vic/VSCA/2014/342.html.
Ibid.
20
Ibid.
19
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
similar to the operation of a CCO, a supervision order under the
SSODSA is a community-based order where the accused is
made subject to numerous conditions while residing in the
community;

the accused has a proven history of non-compliance with the
conditions of the supervision order (which has led to the breach
charge/s), demonstrating a propensity for non-compliance with
community-based orders;

the main purpose of the SSODSA is the protection of the
community; and

the court has already been satisfied that the accused is an
unacceptable risk of committing a relevant offence if a
supervision order is not imposed and the accused is in the
community; and the offender has breached that order.
It is the DPP’s policy that in respect of a proven breach of supervision
order offence under s.160 of the SSODSA, only an immediate custodial
sentence will be sufficient to serve the purposes of sentencing. Also see
DPP Policy 4.7.1 regarding the Crown’s role upon plea and sentencing for
further detail in respect of sanctioning submissions and the proper exercise of
the prosecutor’s duty of assistance.
The prosecutor should also direct the Court to the Honourable Justice Williams
in Acting Secretary to the Department of Justice v McKane [2012] VSC 45921
at paragraph 21:
“It is essential to the effectiveness the statutory scheme that offenders subject
to supervision orders be aware of the significance of their obligations under
the conditions of those orders and the seriousness with which breaches will be
viewed by the courts.”
Publication Orders and Non-Publication Orders in Breach
Proceedings
s.183 Publication Orders
It is an offence under s.182 of the SSODSA to publish certain information
including any evidence given in a proceeding under the SSODSA, the content
of any report put before a court, or any information that may identify a witness
in a proceeding or a victim of a relevant offence committed by the offender.
It is the DPP’s policy that assessment reports and other materials tendered in a
supervision order proceeding can be relied upon in a breach of supervision
order proceeding without the need for a publication order being made under
s.183 of the SSODSA in the substantive supervision order proceeding. The
publication of such material is an offence under s.182 in respect of both the
21
http://www.austlii.edu.au/au/cases/vic/VSC/2012/459.html.
DIRECTOR’S POLICY ON CONTINUED DETENTION
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supervision order and breach proceedings, however it is the DPP’s policy that
the Crown’s reliance in open court and tendering of such documents does not
amount to ‘publishing’ for the purpose of s.182.
It is the DPP’s policy that a publication order under s.183 of the SSODSA is
only required in circumstances where a person other than the Court wishes to
publish the Court’s reasons or the content of any report tendered, or evidence
given, in a proceeding under the SSODSA (Jack Heath (A Pseudonym) v The
Queen).22
If a prosecutor has concerns about media being present in court and the
potential for media to publish any information raised, evidence given, or
documents tendered in a breach proceeding, the DPP’s policy is for the
prosecutor to apply for a closed court and to put on the record the existence of
the s.182 SSODSA offence provision.
s.184 non-publication orders
If the offender makes an application under s.184(2) of the SSODSA to restrict
publication of his identity and whereabouts, the Crown will generally not
oppose the application.
See section ‘Publication Orders and Non-Publication Orders in Detention
Order Proceedings’ above for more information.
Review of policy
This Policy will be regularly reviewed and updated.
22
See above at [12].
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