This is a case study on terrorism and Extended Supervision Order (ESO) which is a post-sentence order granted by the Supreme Court to our client who has served 15 years of imprisonment. The Minister of Home Affairs originally applied for our client to be placed on a more restrictive Continuing Detention Order (CDO) but we successfully argued that an ESO was more appropriate.
What is alleged to have occurred?
Our client was found guilty in the Supreme Court of Victoria in relation to terrorism offences, and sentenced to a period of 15 years imprisonment, with a non-parole period of 12 years.
Just prior to the expiration of our client’s 15-year sentence (our client was not granted parole), the Minister for Home Affairs (‘the Minister’) applied to the Supreme Court of Victoria to place our client on a Continuing Detention Order (‘CDO’). A CDO is a post-sentence order that allows for the continued detention of offenders, requiring them to be detained in custody if they are an unacceptable risk of committing further serious offending in the community.
To make this order, the Supreme Court was required to consider a number of competing expert reports regarding our client’s risk of committing serious offences. The expert witnesses called by the Minister relied upon the VERA-2R risk assessment tool. The expert witnesses that our lawyers called on behalf of our client was highly critical of the VERA-2R. The Supreme Court accepted the Minister experts’ evidence and made an Order continuing CDO.
Our lawyers appealed this decision to the Victorian Court of Appeal and were unsuccessful.
In the lead-up to the first review date of the CDO, it became clear that the Federal Government were looking to introduce Extended Supervision Orders (‘ESO’) which were to be a less restrictive post-sentence order. Our lawyers began the review at this time with the intention of having our client’s restrictive CDO changed to an ESO. Again, the Minister for Home Affairs relied upon the VERA-2R, and again, our client’s CDO was confirmed.
What happened during the proceedings?
There was another hearing due to occur to review the CDO. Just prior to this hearing, our lawyers became aware of some incredibly serious non-disclosure of important evidence by the Minister in the earlier proceedings.
As it turns out, the Department of Home Affairs had commissioned a report from the Australian National University which was produced to determine the accuracy of the VERA-2R as a risk assessment tool. This report determined that the VERA-2R was unable to predict the specified risk with “anything other than chance”.
Our lawyers initiated a review of our client’s CDO on the basis of the non-disclosure of the report, and a review hearing was listed. At the same time, the Attorney-General conceded that our client did not need to remain on a CDO and could instead be placed on an ESO. Therefore, the hearing was to centre around the conditions of the ESO that would be ordered.
Then, a month before the hearing was due to begin, the Attorney General decided to cancel our client’s visa, having already revoked citizenship (a decision we eventually successfully overturned in the High Court of Australia), meaning that our client was in Australia as an “unlawful non-citizen”.
In the days before the trial, the Attorney-General continued to disclose material, including 3 further reports that were critical of the VERA-2R, behaviour which the Supreme Court determined was “totally unacceptable”. This led to a further delay of the trial.
During the hearing, our lawyers called our own expert on extremism who agreed that our client should only be placed on an ESO for a year, and that the conditions should not be overly onerous.
The Attorney-General submitted that more severe conditions should be imposed, and that the ESO should run for 3 years.
What was the result?
In the judgment, the Supreme Court Justice that presided over the trial noted that the non-disclosure by the Attorney-General was “serious and extremely concerning”, and that the Department of Home Affairs had deliberately withheld information from the Court and had therefore “interfered with the administration of justice.”
Further, the Supreme Court Justice agreed that in this particular case of our client having already served 15 years of imprisonment for charges related to terrorism, Extended Supervision Order as a post-sentence order was appropriate to impose only for a duration of 1 year.
This decision meant that our client could be released from prison into the community for the first time in 17 years.
DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 11/11/2024
