The sex offenders’ challenge

My guess last post was right. (Of course, presumably the whole legal community knew this, but not me.) It’s on!:

Two convicted sex offenders are invoking Victoria’s human rights charter to appeal against being given an extended supervision order in what is a legal first.

One of the applicants is a child sex offender jailed for more than 10 years for his crimes. The man, whose name is suppressed, was convicted for sex crimes against his teenage daughter, another teenage girl and his adult partner. He was given a 10-year extended supervision order when he finished his jail term after a County Court judge found a “high degree of probability” he was likely to further offend. However, his lawyer Graham Thomas SC told a Court of Appeal hearing today his client was not a high-risk child sex offender and therefore not eligible to to be subject to the order.

Mr Thomas also said the sentencing judge had indicated she did not believe the man was suitable for an order but later changed her position. But counsel representing the secretary to the Department of Justice, David Grace QC, said the man’s crimes were premeditated and opportunistic. Mr Grace said the sentencing judge included in her reasons the fact the man had shown a lack of insight into his behaviour by denying his wrongdoing. He said the man jumped bail on the day he was due to attend his court hearing on his application for an extended supervision order and had refused to take part in a sex offenders program, despite being offered many times. Mr Grace said the man continued to “thumb his nose up at authority” and suggested he tried to create relationships with females with children while he was in jail so he could groom them for sexual offending.

The second sex offender is appealing an eight-year extended supervision order imposed on him by the County Court on the basis it is too long. The man, whose name is also suppressed, was jailed for more than a year for indecent assault and will also use the charter to argue his case.

Victoria became the first Australian state to implement a Charter of Human Rights and Responsibilities on January 1 and it is the first time it will be considered by Victoria’s appeal court. The hearing before Justices Geoffrey Nettle, President Chris Maxwell and Mark Weinberg continues tomorrow.

Um, it’s actually the sixth time the Charter will be ‘considered’ by Victoria’s appeal court. The appeal court cited the Charter once in 2006 and four times again this year, including in its appalling Underbelly decision. Here’s hoping, though, that this will be the first time the Court actually does the Charter justice, in analysis if not in the final result. Interestingly, all three judges in this hearing are Charter virgins. The case, argued today, is listed for a second day of argument tomorrow. [EDIT: And here’s the Hun’s take. The tabloid refers to the offenders as ‘sex fiends’ (fair enough, I guess) and, as is the norm, gives more details of the legal argument than the Age.]

But what is being argued? The article is tantalisingly vague. I can see three types of rights arguments could be made about extended supervision orders (ESOs):

First, Liberty, etc: ESOs, by their nature, limit a huge number of rights, i.e. non-consensual medical treatment, movement, privacy, conscience, expression, association and liberty. Either by reference to internal limits or Charter s. 7(2), the issue with ESOs is whether they are rasonable limits (i.e. lawful, non-arbitrary, proportionate, minimalist.) Getting down to the nitty-gritty, if the article is correct that the second offender faces an eight-year ESO after an offence that got him only one year in prison, then that’s certainly going to raise Charter eyebrows about the proportion point.

Such arguments could be used to question the interpretation the Court of Appeal gave to the Serious Sex Offenders Monitoring Act 2005 back in 2006 (in that first ever case where the Charter was mentioned.) The relevant clause is this one:

11(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.

As I noted in this post, the Court of Appeal back then considered two possible interpretations for ‘likely’: ‘being reasonably sure’ or a ‘high degree of probability’. It opted for the latter harder-to-establish standard, citing the Charter as evidence of what sort of society Victoria is. Interestingly, when the NSW Court of Appeal, in Tilman v AG (NSW) [2007] NSWCA 327, considered the same wording in its legislation (which authorises detention, not just ‘supervision’), it said that it would have interpreted ‘likely’ as meaning ‘more probable than not’, a still tougher standard, but followed the Victorian court in the name of ‘comity’.

So, the question now is whether the Court of Appeal, applying the Charter for real this time, should switch to the tougher standard favoured (but not followed) by the NSW court, on the ground that that’s the minimum intereference. Such a re-interpretation would not be permissible if it was inconsistent with the SSOMA’s purpose. Arguably, limiting ESOs to offenders who are more likely than not to re-offend is contrary to the SSOMA’s protective purpose. If re-interpretation is on the cards, then I’m a bit surprised that there’s only a three-judge bench hearing this matter, as I thought the VCA’s tradition was to only overrule itself with a five-judge bench. Maybe the Charter changes the rules? If re-interpretation isn’t possible, then a declaration of inconsistent interpretation is the next possibility, but alternatively the VCA could find that the existing interpretation is a reasonabe limit.

Second, Retrospectivity / double jeopardy: SARC raised a retrospectivity issue in relation to this year’s extension to the ESO scheme, but that doesn’t seem to be at issue here (at least with the first offender, who is a child sex offender on a non-interim order, and therefore covered by the original scheme.) But he, at least, could raise a retrospectivity argument about the original SSOMA, which was applicable to people sentenced (but not released) before it was enacted. This argument turns on a technical issue of whether or not ESOs are ‘penalties’/’punishments’ or not. The offenders will be able to cite a New Zealand Court of Appeal decision, Belcher v Department of Corrections [2006] NZCA 262, that ruled that a very similar scheme was a penalty/punishment for the purposes of the NZBoRA.

The government will has four possile responses: (a) an argument that the NZCA was just wrong or can be distinguished; (b) a technical argument that the NZCA decision was kinda sorta ultra vires, according to the NZSC; (c) an argument that US and UK judgments on quite different schemes, or Australian HCA dicta on Chapter 3, should be preferred to the NZCA decision; or (d) retrospectivity, schmetrospecitivity! It’s all reasonable as a way of keeping the community safe. The fourth argument is the only particularly sound one and none of them is overwhelming.

But the bad news for the offenders is that there isn’t much in it for them in making this argument. It’s not clear to me how it will help out on the interpretation question of whether they should get ESOs. So, all they’ll get is bragging rights over in Ararat for being the first Victorians to get themselves a declaration of inconsistent interpretation (assuming they beat Hinch to the punch.) Call me crazy, but I can’t see Parliament responding by repealing the SSOMA or making it prospective only. But it’ll certainly set the cat among the pigeons.

Third, Self-incrimination: The bit about the judge giving the first offender an ESO in part because he showed lack of insight by ‘denying his own wrongdoing’ could raise an argument about this Charter right:

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-… (k) not to be compelled to testify against himself or herself or to confess guilt.

This issue raises a real and very difficult clash between pragmatism and principle. Pragmatism suggests that an offender’s acceptance of his wrongdoing is a key to his probability of re-offending. (Well, pop psychology suggests that anyway. And, as I understand things, it’s a precondition for ‘treatment’.) Principle, by contrast, says that this approach will mean that people who continue to insist on their innocence, even after being convicted, will face a tougher punishment (and life) than people who ‘confess guilty’. That’s a tough one.

This broad issue came before the United States Supreme Court in McKune v Lile, 536 US 24 (2002), which also involved the consequences of a sex offender not confessing guilt. Lile, who was convicted of rape of a school girl but maintained at trial and afterwards that the sex was consensual. He refused to participate in a treatment program because it required him to submit to confess all of his offences under a lie detector. Any confession could be used against him, e.g. to charge him with perjury in his original trial. (That wouldn’t be possible here.) Non-participation meant that he was transferred to a higher security prison (to make room for other participants) but had no other consequences. The Supreme Court upheld this scheme in a (then) typical 5-4 split. O’Connor, as the swing, limited her concurrance to the fact that the ‘coercion’ was pretty minor and no different to other disciplinary aspects of prison life. Clearly, she wouldn’t say the same about the SSOMA, which operates after the sentence is completed. A number of the remaining majority’s arguments are similarly inapplicalbe here. To fight this precedent on its merits, the government would have to focus on the final two of the five reasons given by the plurality: that ‘hard choices’ aren’t always coercion; and that a bar on rewarding acceptance of guilt would be contrary to sentencing principle. Interestingly, just last week, the High Court endorsed the idea that lack of acknowledge of guilt can aggravate a sentence in Australia.

Alternatively, the government could – and probably would – fight this argument on a technicality: that Charter s. 25(2)(k) is limited to ‘criminal proceedings’ and that SSOMA hearings are civil or adminstrative or something. So, self-incrimination is quite OK. This is, of course, the unfortunate consequence of the view that Hollingworth J leant towards in Sabet, albeit there she was construing the presumption of innocence and she completely missed the significance of self-incrimination at the end of the list. Perhaps, this will be a chance for the Court of Appeal to put the kybosh on all of that. Failing that, there’s Charter s. 24 too, though the government might try to argue that SSOMA hearings are neither civil nor criminal but some mysterious other, fair-hearing-free, category.

The self-incrimination argument, if its gets up, could be used to re-interpret this SSOMA provision:

11(3) In determining whether the offender is likely to commit a relevant offence in the circumstances described in subsection (1), the court must, subject to subsection (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.

The argument would be that it’s not appropriate to consider things in a way that would limit a Charter right. Hmmmm. Failing that, it’s time for Charter s7(2) and, maybe, Charter s. 36!

All up, quite an exciting set of arguments! Let’s hope someone puts them to the Court. And that the Attorney-General and VEOHRC show up to make sure that the Court of Appeal is well versed on cases like Tilman, Belcher and McKune. This would be a bad time for shoddy comparative law and statutory interpretation, wouldn’t it?

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