Preventative detention regime for sexual offenders compatible with Victorian Charter

DPP v J P H (No 2) [2014] VSC 177 (16 April 2014)

The Victorian Supreme Court held that the legislative regime empowering courts to make preventative detention orders for certain sexual offenders is compatible with the Charter of Human Rights and Responsibilities Act (2006) Vic.


The respondent was a 40 year old man with a history of sexual offending from the age of 14.  He had served custodial sentences for offences including sexual assault. While in prison the respondent had assaulted and threatened female staff with sexual violence, leading to revocation of his parole and concerns regarding risks to the community on his release.

In June 2009, as his release date approached, the County Court made a supervision order under the Serious Sex Offenders (Monitoring) Act 2005 (Vic) (“superseded Act”). The superseded Act did not allow for an unconvicted person’s detention in a prison, but did enable orders to be made requiring dangerous offenders to be monitored in a special “residential facility” in the community.

The respondent was supervised in a secure facility within the de-gazetted grounds of a Victorian prison called ESOTAC. While living under supervision the respondent continued to sexually threaten female staff.

The superseded Act was replaced by the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) (“the Act”) in 2010. The Act empowers the Court to order the continued detention or supervision of an eligible sexual offender who has already served their sentence where the offender continues to pose an ”unacceptable risk” to the community and continued detention or supervision is reasonable and necessary to protect the community from this risk.

In 2010 the DPP applied for a detention order under the Act, but the application was dismissed by the Court on the basis that the respondent continued to be housed at ESOTAC under the superseded Act.

As part of the transition from the superseded regime to the current regime with its two distinct accommodation options, ESOTAC would close. When the respondent’s supervision order came under review in September 2012 the DPP applied to the court for a detention order under the Act. This case relates to that application.

Application for a detention order

The DPP sought a detention order under the Act to replace the supervision order in operation under the superseded Act. The respondent would be housed in a prison, albeit under special conditions separately from prisoners serving sentences, which the DPP argued were similar to the conditions imposed under the superseded regime.

The DPP carried the onus of proving “unacceptable risk” to a high degree of probability. Three psychological/psychiatric experts reported that the respondent continued to exhibit “chronically problematic” behaviour including sexual deviance and violent ideation, and that he also presented a “really significant” risk to the community across five risk factors including sexual violence.

The respondent conceded that he did present an “unacceptable risk”, but that this risk could be sufficiently managed by community supervision. Conditions in detention would be significantly more restrictive than those he currently experienced in the residential facility, he argued.

Charter rights

The respondent also sought declarations of inconsistent interpretation under section 36 of the Charter, on the basis that the regime established under the Act was incompatible with human rights protected in the Charter.

The respondent submitted that under the legislative regime it would be possible for unconvicted detainees to be classified as maximum or high security risk, which would then leave them liable to a variety of further restrictions. For instance, under the Corrections Regulations, they could potentially be subject to the control of money and property, strip searches and control of communication.

Cumulatively, the respondent contended that preventative detention in these conditions was incompatible with the protection against arbitrary detention (section 21(2) of the Charter) and the right to humane treatment when deprived of liberty (section 22 of the Charter).

The respondent also submitted that the claimed inconsistency between the Act and the Charter should be a relevant factor in the court’s consideration as to whether or not to make the detention order.


The Court made the detention order and found no inconsistency between the provisions of the legislative instruments and the Charter. It followed that the claimed inconsistency was not a relevant consideration for the court in determining whether to make the order.

Central to the court’s decision was the fact that questions of necessity and proportionality had already been built into the Act and were at the heart of the court’s consideration as to whether or not to make a detention order.

Under the Act, a detention order application is subject to a two-part test. The court is required to determine whether an offender presents an “unacceptable risk” to the community and then whether a detention order is reasonable and necessary to safeguard against that risk. 

Justice Forrest found that the statute implied that the offender’s human rights must be considered by a court making a detention order: “(t)he Court must consider whether the limitations on the offender’s human rights are necessary to protect the community from the risk that the offender poses.” That is, the proportionality of the limitations on the detainee’s human rights to the risks those limitations protect against is central to the scheme of the Act. 

While acknowledging the restrictions the respondent would face, the court found such restraints were reasonable and necessary given the gravity of the risk they were designed to protect against. Justice Forrest found that detention was the only option considering the gravity of offending and high likelihood that the respondent would re-offend under a supervision order.

His Honour held that the preventive detention regime under the Act was compatible with the Charter.


The case contributes some useful jurisprudence on the scope and application of the protection against arbitrary detention in section 21 of the Charter.

The court noted that there are currently conflicting authorities in Victoria on the scope of this right. In WBM v Chief Commissioner of Police, Kaye J concluded that ‘arbitrary’ referred to a decision or action that was not based on any relevant identifiable criterion but that stemmed from an act of caprice or whim. In PJB v Melbourne Health & Anor Bell J rejected this approach, finding that the word ‘arbitrary’ bears the much broader meaning embodied in s 17(1) of the International Covenant on Civil and Political Rights. Bell J found that arbitrariness “extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought.”

There is also an open question as to whether arbitrariness is concerned only with the fact of detention or whether conditions of detention are also relevant.

The court in this case found it unnecessary to resolve these questions because, owing to the proportionality assessment built into the scheme of the Act, the respondent’s human rights arguments failed regardless of whether the broad or narrow construction of the term arbitrary was adopted and regardless of whether it applied to the fact or conditions of detention.

This decision is available online at:

Jane Doyle is a Volunteer Lawyer with the Human Rights Law Centre.