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Key changes to extended supervision in 2018

Information about the changes that happened in 2018, which enable violent offenders to be placed on supervision or detention orders after serving their sentence.

From 3 September 2018, the detention and supervision scheme has been expanded to include people who have served time in prison for serious violence offences if they are considered to pose an unacceptable risk of harm to the community after completing their prison sentence. Before this date, the scheme only applied to serious sex offenders. This scheme is governed by a new Act, the Serious Offenders Act 2018, which has replaced the Serious Sex Offenders (Detention and Supervision) Act 2009.

People who committed one of the applicable violent offences before the new Act commenced may still be subject to a detention or supervision order, as long as they are eligible offenders. Here are some of the main features:

Which offences may apply?

The list of sex and violence offences that could lead to a person being issued with a detention or supervision order are set out in Schedules 1 and 2 of the Act respectively. These are serious violent or sexual offences causing interpersonal harm that were imposed by the County or Supreme courts.

The violent offences include:

  • murder or manslaughter (but not culpable driving)
  • child homicide
  • arson causing death
  • serious injury
  • kidnapping
  • causing serious injury intentionally (or recklessly) in circumstances of gross violence.

The list includes offences where the person intended to commit an offence of the kind listed in the schedule. It also includes conspiracy to commit, attempting to commit, or inciting to commit one of the listed offences. Corresponding offences committed in another jurisdiction are included if the elements are the same as one of the offences listed in the schedule.

The list of sexual offences that are included are slightly narrower than under the former Act. Summary sex offences have been omitted. See Schedule 1 for the full list.

See:

Who is an eligible offender?

Detention or supervision orders can be imposed on any adult who:

  • has been given a custodial sentence in the Supreme Court of the County Court at any time for a serious sex or serious violence offence and they are currently serving a custodial sentence (whether or not sentence is being served cumulatively or concurrently with other offences), or
  • is remanded in custody or serving a custodial sentence for any offence and at the time they were remanded, or began their custodial sentence they were subject to:
    • supervision order
    • detention order
    • interim detention order
    • emergency detention order, or
    • an application for a detention, supervision or emergency detention order, or
  • is subject to a supervision, detention, interim detention or an emergency detention order, even if they are not currently remanded in custody or serving a sentence.

So this Act may apply to people who have committed a serious violent offence before the new Act commenced.

See s. 8—Serious Offenders Act 2018 (Vic)(opens in a new window).

Early notification, assessment and treatment

Once an eligible offender has been identified, resources will be directed towards managing and treating offenders who pose the greatest likelihood of causing serious interpersonal harm, or where the consequences of them re offending would result in serious interpersonal harm. The new Act aims to ensure early intervention by warning offenders of the possible consequences, and to assess and treat them as soon as possible. This is designed to give offenders an incentive to engage with treatment and rehabilitation. The ultimate aim being to get the offender to address the issues that contribute to their offending behaviour and to reduce the risk of reoffending to the point where the court is unlikely to find them to be an unacceptable risk.

See 'Second reading speech' for the Serious Offenders Act in References.

What happens to orders made under the former Act

Any supervision order, detention order or interim detention order made before the commencement of the new Act will continue to apply.

Orders made under the former Act ('Old orders') can be reviewed or renewed under the new Act, even if the person would no longer fit the eligibility criteria, had the orders been applied for under the new Act. This means that the secretary of the Department of Justice and Community Safety (DJCS) can apply to have the old order renewed if that person still poses a risk to the community.

People subject to old orders must comply with the core conditions set out in the Serious Offenders Act 2018.

See s. 31, Schedule 4—Serious Offenders Act 2018 (Vic)(opens in a new window).

Conditions attached to a supervision order

Conditions are imposed in a supervision order to reduce the risk that the offender will commit a serious sex or serious violent offence. This is not new, but the conditions have expanded. It is an indictable offence, punishable by up to 5 years imprisonment if an offender fails to comply with a condition in a supervision order.

There are 2 categories of conditions:

  • core conditions (which apply to everyone who is subject to a supervision order), and
  • other conditions (tailored to the needs of the particular offender).

With the exception of core conditions, the court may declare other conditions are temporary, so that they last only up to 6 moths.

See ss. 31, 32, 34,35, 37, 42—Serious Offenders Act 2018 (Vic)(opens in a new window).

Core conditions

The concept of core conditions is not new, but the list has expanded. They apply to all supervision orders as long as the order is in place, regardless when the order was made.

Core conditions include a requirement that the offender:

  • does not commit any serious violent or serious sex offence listed in Schedules 2 and 1 of the Act (including outside Victoria)
  • does not commit any offence under Schedule 3 (additional offences prohibited under core conditions)
  • does not do anything to pose a risk to the good order of any residential facility (or residential treatment facility) that they are required to live in
  • obeys all instructions given to them by a supervision or other authorised officer
  • does not engage in any behaviour that threatens the safety of any person (including the offender themselves)
  • attends any place as directed by the authority in relation to:
    • assessments required
    • administration of conditions
    • receiving visits
  • notifies the authority of any change in their employment
  • asks permission before leaving Victoria
  • complies with any emergency direction given by the authority
  • obeys all instructions given by a Community Corrections Officer.

When making a supervision order, the court must also consider making an order that the person not contravene the Firearms or Control of Weapons Acts.

See ss. 31, 37—Serious Offenders Act 2018 (Vic)(opens in a new window) and Provisions relating to firearms.

Schedule 3 offences

These offences must not be committed by a person who is subject to a supervision order. The long list of offences includes:

  • stalking
  • using firearms to commit an offence, or to resist arrest
  • performing female genital mutilation or removing a person from Victoria with that intention
  • contravening a family violence safety notice or order or a personal safety intervention order
  • distribution of an intimate image
  • destroying or damaging property
  • home invasion, armed robbery or car invasion, and
  • bomb hoaxes.

See Serious Offenders Act 2018—Schedule 3(opens in a new window).

Suggested conditions

In addition to the core conditions that must be included in a supervision order, the court may also impose conditions that:

  • restrict the areas that the person can visit (or must not visit at particular times)
  • require a person to attend treatment or rehabilitation programs
  • prohibit drinking alcohol or using prohibited drugs
  • require the person to have regular breath or urine tests
  • restrict the kind of work a person can do
  • place restrictions on certain kinds of behaviour
  • restrict some community activities
  • restrict the people, or classes of people that the person can associate with (for example, children)
  • require the person to be monitored (including electronic monitoring), or
  • require the person to submit to medical examinations.

See s. 35—Serious Offenders Act 2018 (Vic)(opens in a new window).

Intensive treatment and supervision condition

The court may impose a condition that requires a person, who has been sentenced for a serious sex offence, to live at a residential treatment facility if the court is satisfied that:

  • the condition is necessary to reduce the risk of the person committing a serious sex or serious violence offence, and
  • other less restrictive ways of managing the risk have been tried or considered.

If an intensive treatment and supervision order is imposed, the court must also impose a list of other conditions. These include requirements to participate in the treatment, restrict when they can leave the facility, and submit to electronic monitoring.

These intensive treatment and supervision conditions may remain in force for up to 2 years.

See s. 32, Part 13—Serious Offenders Act 2018 (Vic)(opens in a new window).

Restrictive conditions

If an application is made, the court can make a declaration that any of the conditions imposed on a supervision order are restrictive conditions.

Some core conditions are automatically restrictive conditions. The minimum penalty for contravening a restrictive condition is 12 months prison (unless an exception applies).

See ss. 3, 41—Serious Offenders Act 2018 (Vic)(opens in a new window).

Court must consider conditions in any existing orders

When the court is considering what conditions to include in a detention or supervision order, they must consider what conditions are currently in place in:

  • interim accommodation or family preservation orders under child protection law
  • a family violence intervention order (or recognised DVO)
  • personal safety intervention orders.

The court must not impose conditions (with the exception of a core condition) that is inconsistent with a condition in one of these existing orders unless the court believes that it is necessary to reduce the risk of the offender reoffending.

See s. 30—Serious Offenders Act 2018 (Vic)(opens in a new window).

Discretion to impose any other conditions

The new Act makes it clear that the court has the power to impose any other condition that it considers appropriate. It then goes on to give some suggestions for conditions that may reduce the likelihood of the person offending. The suggestions for other conditions are to:

  • prohibit internet access
  • undergo treatment or rehabilitation
  • attend a program relating to violent behaviour, anger management, conflict resolution,
  • attend programs relating to interpersonal skills or interpersonal relationships.

See s. 38—Serious Offenders Act 2018 (Vic)(opens in a new window).

Provisions relating to firearms

In addition to the requirement that the court consider imposing a condition prohibiting contravention of a provision under the Firearms or Control of Weapons Acts, the Act empowers a court to:

  • cancel (or suspend) a person's firearms authority
  • revoke a weapons approval, or
  • revoke an application for a weapons exemption when making a supervision or interim supervision order.

The person cannot appeal a court's decision to make an order cancelling a firearms authority or revoking a weapons approval or application. However, if a supervision order is revoked or expires then the orders relating to firearms and weapons cease to have any effect.

See ss. 37, 38, 39, 50, 51—Serious Offenders Act 2018 (Vic)(opens in a new window).

Interim orders

The Department of Justice and Community Safety (DJCS) can apply to court seeking an interim supervision order if an application has been lodged for a supervision order, or an extension of such an order. The purpose of this is to fill the gap in community protection while waiting for a decision on whether an order can be made or extended.

The process for an interim detention order is similar but applications are made by the Department of Public Prosecutions for these orders.

Interim supervision or interim detention orders can last up to 4 months or more if the court is satisfied that exceptional circumstances apply. These interim orders can also be renewed.

See Parts 4 and 6—Serious Offenders Act 2018 (Vic)(opens in a new window).

Detention in an emergency

DJCS can apply to the Supreme Court to detain a person in prison for up to 7 days if they are subject to a supervision or an interim supervision order.

The court may order that this application be heard ex parte (in the absence of the offender) if this is necessary to manage the immanent risk (say, for example if they believe that the offender is likely to abscond). The court may make and emergency detention order if they are satisfied that the matters alleged in the application would, if proven, establish that due to these changed circumstances, that the offender poses an immanent risk of committing a serious sex or serious violence offence if the emergency order is not made.

DJCS will need to show that circumstances have altered and also that the risk is immanent.

If the order was made in the absence of the offender, the offender must be served with a copy of the order, including reasons for making the order. They have to let the offender know how to appeal the decision. Both DJCS and the offender have the right to appeal the court's decision.

See Part 7—Serious Offenders Act 2018 (Vic)(opens in a new window).

Other emergency powers if imminent risk

Under the old Act, the Post Sentence Authority ('the authority') was empowered to give emergency directions that last up to 72 hours to a person who is on a supervision or interim supervision order. This power continues under the new Act.

The power for a police officer to apprehend and detain an offender who is subject to a supervision order (or interim supervision order), if they pose an imminent risk of contravening a condition of their order, has been carried over to this new Act.

The person may be detained in a police jail or police station for up to 72 hours if necessary to protect any person or property or to prevent the person from escaping from detention.

See ss. 142, 155, 159—Serious Offenders Act 2018 (Vic)(opens in a new window).

Post Sentence Authority

This authority is responsible oversight of the post sentence scheme and for monitoring offenders detained or supervised under its aegis. They are also responsible for overseeing the scheme. Their role includes:

  • review and monitoring offenders' progress and compliance with the conditions
  • giving directions to offenders bound by the scheme, such as where they can live
  • making recommendations to DJCS about reviewing the conditions of supervision orders
  • investigating breaches of supervision orders and making recommendations about commencing legal proceedings.

See Part 11—Serious Offenders Act 2018 (Vic)(opens in a new window).

Appeals

A person who is subject to an interim detention or supervision order, a detention or supervision order, an emergency detention order may appeal to the Court of Appeal against the order. The DPP and the Secretary of DJCS may also appeal in the Court of Appeal.

The court may accept new evidence when conducting the appeal. It may also make directions for the provision of an assessment or progress report in relation to the offender.

See Part 9—Serious Offenders Act 2018 (Vic)(opens in a new window).

Contravention of a supervision order

It is an offence to contravene a supervision order or interim supervision order.

Maximum penalty

The maximum penalty for contravention (without reasonable excuse) is 5 years prison.

Exception self-harm

This penalty does not apply to contravention of a condition relating to medical treatment or a condition if the conduct threatens the safety of the offender or causes harm to the offender.

See s. 169—Serious Offenders Act 2018 (Vic)(opens in a new window).

Contravention of a restrictive condition

The minimum penalty for a breach of a restrictive condition is 12 months prison, unless a special reason exists. Special reasons are described in the Sentencing Act 1991 as:

  • the offender has helped law enforcement authorities in the investigation or prosecution of an offence
  • is aged over 18 and under 21 years old at the time of the offence and proves that they have a particular psych-social immaturity, diminishing their ability to regulate their behaviour
  • proves that they had impaired mental functioning when they committed the offence, that substantially reduces their culpability, or would result in the offender being subject to a significantly higher burden or risks of imprisonment.

See s. 169—Serious Offenders Act 2018 (Vic)(opens in a new window) and ss. 10A, 10AB—Sentencing Act 1991 (Vic)(opens in a new window).

More information

Legislation

Serious Offenders Act 2018 (Vic)

  • s. 30—court must have regard other orders
  • s. 31—core conditions in a supervision order
  • s. 32—intensive treatment and supervision conditions
  • s. 34—other conditions relating to residence
  • s. 35—suggested conditions
  • s. 37—condition about firearms and weapons
  • s. 38—discretion to impose any other condition
  • s. 39—cancellation of firearms authority etc
  • ss. 40, 41—declaration that condition is a restrictive condition
  • s. 42—temporary conditions
  • Schedule 4—Savings and transitional provisions
    • cl. 4—supervision or detention orders, or interim detention orders made before commencement will continue to be in force until they expire, are revoked, replaced by a different order, the person is deported or the offender dies.
    • c. 4(2)—the superseded Act and Regulations will continue to apply to an order that was made before the commencement of the new Act, however the core conditions, set out in s. 31 will also apply to people subject to the old orders
    • cl. 4(4)—applications for review or renewal of an old order must be made under the new Act
    • (unless the Schedule says otherwise)
  • Part 4—Interim supervision orders
  • Part 65—Detention orders
  • Part 6—Interim detention orders
  • Part 7—Emergency detention orders
  • Part 9—Appeals
  • Part 11—authority may give directions or instructions to offenders on supervision or interim supervision orders
    • s. 142—emergency power of direction
  • Part 12—Contravention of supervision order (or interim supervision order)
    • s. 155—power of police to detain a person who is subject to a supervision order or interim supervision order
    • s. 159—duration of detention
    • s. 169—contravention of a supervision order or interim supervision order Part 13—management of offenders at residential and residential treatment facilities
  • Serious Offenders Act 2018 (Vic)—Schedule 1(opens in a new window)
  • Serious Offenders Act 2018—Schedule 2(opens in a new window)
  • Serious Offenders Act 2018—Schedule 3(opens in a new window)

See Serious Offenders Act 2018 (Vic)(opens in a new window).

Sentencing Act 1991 (Vic)

  • s. 10A—special reasons relevant to imposing minimum non-parole periods
  • s. 10AB—custodial sentence for offence of breaching a supervision order under s. 169 of the Serious Offenders Act 2018

See Sentencing Act 1991 (Vic)(opens in a new window).

Updated