If you or a family member is approaching the end of a custodial sentence for a serious sexual or violent offence, the government has the power to apply to a court to impose ongoing restrictions on your freedom after your release — or in some cases, to keep you in detention beyond the end of your sentence. These are called post-sentence orders, and they are made under the Serious Offenders Act 2018 (Vic).

Post-sentence orders are among the most significant and complex proceedings in Victorian criminal law. They can fundamentally affect your life after sentence, and the consequences of a detention order in particular are severe.

This guide explains what these orders are, how the process works, and what rights you have.

Who Can Be Made Subject to an Order?

The Serious Offenders Act applies to people who have been sentenced to a term of imprisonment in the County Court or Supreme Court — or an equivalent interstate court — for a serious sexual offence or serious violence offence, and who are serving a custodial sentence in Victoria at the time the application is made.

Supervision Orders

A supervision order allows a person to be released into the community after their sentence ends, but subject to conditions imposed by the court. Conditions can include reporting obligations, restrictions on where you can live or travel, prohibitions on contact with certain people, requirements to participate in treatment programs, and other restrictions tailored to manage the risk you are said to pose.

Supervision orders can last for up to 15 years, and can be renewed. They are a significant imposition on a person's freedom, even though they allow the person to live in the community rather than remain in custody.

The Test

The court can only make a supervision order if it is satisfied that you pose — or after release will pose — an unacceptable risk of committing a serious sexual or violent offence if the order is not made and you are in the community.

A few important things to understand about this test:

• The risk does not need to be more likely than not

• The court considers both the probability of future offending and the nature and gravity of the potential offence

• The standard of proof is higher than the balance of probabilities but lower than the criminal standard of beyond reasonable doubt

• The burden of proof is on the Secretary — it is not for you to prove you are safe

When assessing the first stage of the test, the court cannot take into account how the risk might be managed — it must assess the risk as if you were in the community with no order in place at all. The court also has a residual discretion to make no order even if it finds an unacceptable risk exists.

Contravening a Supervision Order

Breaching a condition of a supervision order without reasonable excuse is a criminal offence carrying a maximum penalty of 5 years imprisonment. Where the breach involved an intentional or reckless failure to comply with a restrictive condition, a mandatory minimum sentence of at least 12 months imprisonment applies unless the court finds special reasons to the contrary.

Reviewing and Varying a Supervision Order

Supervision orders are subject to mandatory review at least every 3 years. Either the Secretary or the offender can also apply for an earlier review if there are new facts or circumstances, or if it would be in the interests of justice. On review, the court must revoke the order unless the test for making it is still satisfied.

Conditions of a supervision order (other than core conditions) can also be reviewed separately. Either the Secretary or the offender can apply to vary, add or remove conditions if circumstances have changed.

Detention Orders

A detention order is the more serious form of post-sentence order. It means continuing to be held in custody after your sentence has ended — not because of anything you have done since your release, but because of the risk the court considers you pose. Detention orders can last for up to 3 years and can be renewed repeatedly.

Because a detention order involves continued imprisonment beyond the end of your sentence, the test is deliberately more demanding than for a supervision order.

Who Makes the Application?

The Director of Public Prosecutions applies to the Supreme Court for a detention order. The application must be accompanied by at least one assessment report. Where the offender is already subject to a supervision order, a progress report and the most recent assessment report must also be included.

The Two-Stage Test

The court applies a two-stage test before making a detention order:

First stage

The court must be satisfied that you pose an unacceptable risk of committing a serious sexual or violent offence if neither a detention order nor a supervision order is made and you are in the community. At this stage, the court cannot take into account how your risk might be managed or what impact an order would have on you — it assesses the risk in isolation.

Second stage

Even if the first stage is satisfied, the court must go further and be satisfied that the risk would remain unacceptable even if a supervision order (rather than a detention order) were made. In other words, a detention order can only be made if the court concludes it is the only available means of managing the risk. At this stage, the court can consider how risk might be managed and the impact of an order on the offender.

If the court is satisfied of the first stage but not the second, it may make a supervision order instead of a detention order. The court also retains a residual discretion to make no order at all even if both stages are satisfied.

For both stages, the standard of proof is high — the court must be satisfied by acceptable, cogent evidence to a high degree of probability.

How We Can Help

If you or a family member is facing an application for a supervision or detention order, the time to get legal advice is as early as possible — ideally before the application is filed if you are aware it is coming. We can:

• Advise you on the process and what to expect at each stage

• Appear on your behalf in Court

• Brief specialist counsel to contest the application

• Engage and instruct forensic experts to provide evidence about risk

• Apply for review of an existing supervision or detention order where circumstances have changed

• Contest the conditions of a supervision order and apply to have them varied or removed

Frequently Asked Questions

Can I be kept in prison after my sentence finishes?

Yes, if a detention order is made against you. A detention order under the Serious Offenders Act 2018 can require you to remain in custody beyond the end of your sentence, on the basis of the risk you are assessed as posing in the future. Detention orders last up to 3 years and can be renewed. This is one of the most serious and contested areas of Victorian criminal law.

What is the difference between a supervision order and a detention order?

A supervision order allows you to live in the community after your sentence ends, but subject to conditions — such as reporting requirements, restrictions on where you can live or travel, and prohibitions on contact with certain people. A detention order means remaining in custody beyond the end of your sentence. The test for a detention order is more demanding because it requires the court to be satisfied that no supervision arrangement would be sufficient to manage the risk.

Do I have to prove I am safe?

No. The burden of proof is on the government — they must satisfy the court that you pose an unacceptable risk. You do not have to prove you are safe. However, presenting evidence about your circumstances, your progress, expert assessments, and other relevant material is an important part of resisting an application, and is something we help prepare and present.

What does "unacceptable risk" mean?

An unacceptable risk does not mean that reoffending is probable or likely. The court can find an unacceptable risk even where the probability of reoffending is below 50%. The court looks at both the likelihood of future offending and the nature and gravity of the potential offence. This makes the test a low threshold in one sense — but the government still bears the burden of satisfying it by cogent evidence to a high degree of probability.

Can a supervision or detention order be challenged or removed?

Yes. All orders are subject to mandatory review — supervision orders at least every 3 years, detention orders at least every 12 months. Either you or the government can apply for an earlier review if there are new facts or circumstances. On review, the court must revoke the order unless the test for making it is still satisfied. We can advise you on whether you have grounds for an earlier review and represent you in those proceedings.

What happens if I breach a condition of my supervision order?

Breaching a condition of a supervision order without reasonable excuse is a criminal offence carrying a maximum of 5 years imprisonment. Where the breach involves an intentional or reckless failure to comply with a restrictive condition, a mandatory minimum term of at least 12 months imprisonment applies unless the court finds special reasons. If you are in any doubt about whether you can comply with a condition, contact us before a breach occurs so we can apply to vary the condition.

How long can these orders last?

Supervision orders can last for up to 15 years. Detention orders can last for up to 3 years. Both can be renewed — potentially multiple times. There is no fixed limit on the total duration of an order across renewals, which means in practice these orders can continue for many years beyond a person's original sentence.

Do I need a lawyer for these proceedings?

Yes. These proceedings are legally complex, involve expert forensic evidence, and the consequences — particularly for detention orders — are severe. Contesting an application requires careful preparation, engagement of appropriate experts, and experienced advocacy in the Supreme Court. We have experience in this area and can advise you on the prospects of contesting an application and what the process involves.

Related Guides

You may also find the following guides useful:

Guide to Criminal Appeals in Victoria — challenging orders and decisions in the appellate courts

Guide to Bail in Victoria — bail considerations where an application is pending

Guide to Trials in the County and Supreme Courts — how proceedings in the higher courts work