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[2011] QSC 128
Supreme Court of Queensland
2011-05-20
Dick A/J
Original judgment source is linked above.
[1] By an amended application, the Attorney-General applies under of the ("the Act") for the following orders:
[2] Rescission of the supervision order of Justice Wilson made on 19 October 2007 ("the supervision order") and an order that the Respondent be detained in custody for an indefinite term for care, control or treatment; or
[3] Alternatively, that pursuant to s 22(1)(a) of the Act, the supervision order be amended.
[5] He has spent most of his life since 1980 in prison.
[6] The Respondent has a criminal history with convictions for property, dishonesty and firearm offences.
[7] In addition, he has a history of offences of a sexual nature, some very serious.
[8] In 1966, when he was 18, he pleaded guilty to attempted carnal knowledge of a girl under the age of 10 years and was placed on a bond.
[9] In 1980, he pleaded guilty to raping and indecently dealing with a twelve year old girl and wounding her 15 year old sister. He was sentenced to thirteen years for the rape.
[10] The Respondent was released on parole after serving eight years of that sentence.
[11] Within 20 days of being released from that sentence, he committed offences of rape and sodomy. A jury convicted him on 30 June 1989 and he was sentenced to fourteen years on those charges.
[12] On 17 June 2003, the Attorney-General applied for orders pursuant to the Act that the Respondent undergo a psychiatric evaluation, that he be detained in custody for an indefinite term for care, control or treatment and that he be detained until such time as the court determined the application.
[13] After various interim proceedings and appeals, the final hearing of the application was heard by White J who ordered, on 6 November 2003, that the Respondent be detained in custody for an indefinite term for control, care or treatment.
[14] On 11 May 2005, Moymham SJA ordered that the Respondent continue to be the subject of a continuing detention order.
[15] On 10 May 2006, the Attorney-General applied for a second annual review of the continuing detention order.
[16] On 8 November 2006, A. Lyons J rescinded the continuing detention order and made a supervision order with 32 conditions to last 10 years.
[17] On 4 May 2007, the Respondent contravened two conditions when he visited a Brisbane school to address students. It was a pre-arranged visit and the Respondent was in the presence of his support worker.
[18] On 11 July 2007, the Respondent contravened a condition of the order by enabling or aiding a neighbour who was subject to a supervision order to disobey a curfew condition.
[19] On 21 July 2007 the Respondent absconded and travelled to North Queensland in contravention of his order.
[20] In October 2007, contravention proceedings were heard. On 19 October 2007, Wilson J found that the Respondent had contravened the order. He was ordered to be detained in custody until suitable accommodation was found and the terms of his order were amended.
[21] On 3 April 2008, an intellectually impaired woman made a complaint of rape against the Respondent (anal intercourse without consent).
[22] On the same day, a warrant issued pursuant to s 20 of the Act based on a reasonable suspicion that the Respondent had contravened the condition of his order. He was arrested.
[23] On 14 May 2010, he was convicted of rape following a trial and was sentenced to 10 years imprisonment.
[24] Evidence in the trial alleged the rape occurred at the complainant's home and that later they went to the Tallebudgera Surf Lifesaving Club ("the Club").
[25] On 12 November 2010, the Court of Appeal allowed the appeal, ordered the conviction be set aside and entered a verdict of acquittal on the basis that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.
[26] The amended application alleges contraventions of the following condition of the supervision order namely that the Respondent:
(xvii) Not visit the premises licenced to supply or serve alcohol without the consent of the supervising Corrective Services Officer; and
(xviii) Not go unsupervised to a place that houses children, intellectually disabled persons, mentally ill persons or person with drugs misuse difficulties.
[27] The first contravention relates to the visit to the Club which is licenced to supply and serve alcohol. The Respondent did not have consent to attend the Club.
[28] The second contravention relates to the fact that the Respondent attended the complainant's home unsupervised and the complainant was intellectually disabled.
[29] The onus is on the Attorney-General to satisfy the Court on the balance of probabilities that the Respondent contravened the order.
[30] Section 3 of the Act sets out the objects
(a) to provide for the continued detention or supervised release of a particular class of prisoner to ensure adequate protection of the community; and
(b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation."
[31] S22 provides:
(1) The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening or has contravened, a requirement of the supervision order or interim supervision order (each the existing order);
(2) Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must -
(a) if the existing order is a supervision order, rescind it and make a continuing detention order; or
(b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order.
(3) For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following -
(a) act on any evidence before it or that was before the court when the existing order was made;
(b) make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order -
(i) in the nature of a risk assessment order, subject to the restriction under section 8(2); or
(ii) for the revision of a report about the released prisoner produced under section 8A;
(c) consider any further report or revised report in the nature of a report of a type mentioned in section 8A.
(4) To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a).
(5) If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies.
(6) For applying section 11 to the preparation of the report -
(a) section 11(2) applies with the necessary changes; and
(b) section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist.
(7) If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court -
(a) must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and
(b) may otherwise amend the existing order in a way the court considers appropriate -
(i) to ensure adequate protection of the community; or
(ii) for the prisoner's rehabilitation or care or treatment.
(8) The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).
[32] I am satisfied on the balance of probabilities, that the released prisoner (the Respondent) has contravened a requirement of the supervision order (the existing order).
[33] In Buckley v The Queen[1], the High Court referred to the exceptional nature of an indefinite sentence.
[34] In Chester v The Queen[2] the High Court in considering s 662 of the Criminal Code (WA) said in part D p618:
"The notion that s 662 was designed for the protection of the public from persons with a propensity to commit serious crimes derives no doubt from the fact that the exercise of power is conditioned on conviction for an indictable offence and from the requirement that the court will have regard to the offenders antecedents and the characteristics and circumstances mentioned in the section. However, these elements are a slender foundation for the proposition that the court should exercise the power to direct the detention of a person who has a propensity to commit serious crimes not amounting to crimes of violence ... the power to direct or sentence to detention contained in s 662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm. The extension of a sentence of imprisonment which would violate the principle of proportionality can scarcely be justified on the ground that it is necessary to protect society from crime which is serious but non-violent ..."
[35] By s 13 of the Act, a prisoner is a serious danger to the community if there is an unacceptable risk that he will commit a serious sexual offence if released or if released without a supervision order. The Court may reach a conclusion only if satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the decision. The paramount consideration is the need to ensure the adequate protection of the community.
[36] Dr Grant assessed the Respondent's risk to the community pursuant to an order of this Court dated 2 December 2010.
[37] He provided a report on that assessment dated 17 January 2011. He recommended that report be read with his earlier report to the Court dated 3 April 2006.
[38] Dr Grant gives the opinion that the risk of re-offending in Mr Fardon's case arises from his personality disorder/psychopathy along with the effects of long term institutionalization to prison life and culture rather than arising from any specific sexual disorder or paraphilia.
[39] Dr Grant also states that Mr Fardon has not completed a sexual offender treatment program in prison, but in his opinion that is not specifically indicated, given Mr Fardon's attitudes about such programs and lack of a specific sexual paraphilia that needs treatment.
[40] Dr Grant believes that placing him in such a program would not be likely to succeed. He states that Mr Fardon does not currently suffer from any psychiatric disorder requiring specific treatment and there are no other programs within the prison environment which are likely to assist him.
[41] In an earlier report his diagnosis was one of Antisocial Personality Disorder with a past history of significant alcohol and drug abuse. He said:
"...however, that substance abuse had been in remission for many years in prison. He also has a history of intermittent anxiety symptoms and adjustment disorder when faced with stressful situations in his life."
[42] He assessed that the Respondent scored at a level on the Psychopathy Checklist (PCLR-R) which indicated that he suffered from psychopathy.
[43] He said that the Risk Assessment using formal instruments was mainly based on his behaviour prior to prison and that at his age there was likely to be some amelioration of the more overt and aggressive aspects of his antisocial personality disorder.
[44] Dr Grant's opinion is that the risks of future contravention of a supervision order are high. The risks are higher for general offending than for sexual offending.
[45] Overall his assessment would be that the Respondent presents a moderate to high risk of re-offending, with non-sexual re-offending being more likely than sexual re-offending and he assessed that there would be a high risk of contravention of any future supervision order.
[46] In February 2011, Dr Harden assessed the Respondent as meeting a diagnosis of Antisocial Personality Disorder and as having a psychopathic personality.
[47] Dr Harden gives the opinion there is no compelling evidence that he suffers from any deviant sexual interest or paraphilia.
[48] He assesses him as at a moderate to high risk of re-offending sexually in the community with no constraints on his behaviour. The risk could be decreased to low to moderate if released with a stringent supervision order being continued, particularly if he maintains his abstinence from alcohol and drug use.
[49] In a joint opinion dated 2 March 2011, the psychiatrists opined:
[50] He is at moderate to high risk of re-offence sexually in the community with no constraints on his behaviour;
[51] This risk can be reduced if he is released on a supervision order, particularly as this relates to abstinence from alcohol and drug use;
[52] Due to his antisocial personality and institutionalisation there is a significant chance of him breaching conditions of a supervision order at some point in the future;
[53] His behaviour while on a supervision order to date suggests that breaches are less likely to be sexually violent in nature than some other kind of rule breaking behaviour.
[54] Mr Davis SC for the Attorney-General submits that the starting point in assessing whether the adequate protection of the community can be ensured is the joint opinion of Doctors Grant and Harden that the Respondent is at a moderate to high risk of re offence sexually in the community unless he is subject to a supervision order.
[55] He submits that the question then becomes whether the adequate protection of the community can be ensured given the Respondent's demonstrated attitude towards supervision in the past which has been poor.
[56] He concedes that the joint opinion is that the Respondent's risk of future contraventions are more likely to be in the nature of general offending rather than sexual offending.
[57] Mr O'Gorman submits that the breaches here are mere minor and/or technical breaches in that the intention of clause (vii) of the supervision order was that the Respondent not consume alcohol because the consumption of alcohol increased his risk of offending, and there is no evidence he did consume alcohol at the SLSC.
[58] I would add he is not charged with a contravention of clause (xiii) ie abstain from the consumption of alcohol for the duration of the order.
[59] Continuing abstinence from alcohol and drugs is an important factor in containing the risk of re-offending. While he was in the community he was subjected to numerous tests for the presence of alcohol and substances. None of the test results were positive.
[60] Mr O'Gorman further submits it was not the intention of paragraph (xviii) of the supervision order that the Respondent be prevented from visiting the home of a person who he had been friends with for almost 60 years.
[61] During the course of oral submissions, I asked why clause (xviii) included an embargo on visiting unsupervised the home of an intellectually impaired person. I was informed that the Respondent was not convicted of any past offence relating to an intellectually impaired person but that his victims in the past had been vulnerable people.
[62] Whilst I would not typify the breaches as "mere minor or technical breaches", it is important to keep in mind that the clause relating to visiting licenced premises is clearly designed to support the clause which requires him to abstain from the consumption of alcohol. He has not been charged with breach of the latter clause.
[63] Clause (xviii) is clearly designed to support clause (x) ie not commit any offence of a sexual or violent nature. He has not been convicted of an offence of a sexual or violent nature.
[64] I am satisfied that the alleged contraventions have been proved.
[65] On the basis of the circumstances of the breaches and the evidence of Doctors Grant and Harden, I am satisfied on the balance of probabilities that the adequate protection of the community can be ensured by the Respondent being released from custody subject to a supervision order.
[66] I have been concerned that Dr Grant has assessed that, arising from the Respondents attitude to authority, there is a high likelihood of future contraventions of any supervision order.
[67] However, the Act does not contemplate the arrangements to prevent any risk must be "water tight" otherwise orders would never be made. In Attorney-General (Qld) v Francis[3], it was said:
"The (DP(SO)A) does not contemplate that arrangements to prevent such a risk must be 'water tight'; otherwise orders under s 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint."
[68] The Respondent has discharged the onus upon him imposed by s 22(7) of the Act.
[69] A draft judgment was forwarded to the parties and submissions were invited in respect of appropriate amendments to the supervision order made on 19 October 2007.
[70] Counsel prepared a consolidated draft order which comprised some requirements which were by consent and some requirements which were contested by the Respondent.
[71] A suggested requirement that was contested is that the Respondent "not visit public parks without prior written permission from the supervising Corrective Services Officer".
[72] It is not alleged that any of the Respondent's earlier offences had a connection to a public park.
[73] I consider the requirement to be unduly restrictive and to have the potential to interfere with his rehabilitation into the community.
[74] Another contested draft requirement was that the Respondent "disclose to an authorised Corrective Services Officer upon request the name of each person with whom he associates and respond truthfully to requests for information from an authorised Corrective Services Officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour."
[75] The objection is that the term 'associates' is so wide that it encompasses anyone he would meet on a regular or semi regular basis such as a bus driver or a shopkeeper.
[76] It is pointed out that another proposed condition requires him to notify the supervising Corrective Services Officer of all personal or intimate relationship entered into by him and to disclose the other persons details. I consider this condition serves the purpose which is to "manage the risk associated with the Respondent's risks" (see page 12 Supplementary Outline on behalf of the Attorney-General).
[77] Another requirement proposes was that "if directed by an authorised Corrective Services Officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by an authorised Corrective Services Officer who may contact such persons to verify that full disclosure has occurred."
[78] It is generally agreed the condition should read "If directed by an authorised Corrective Services Officer disclose the fact of the supervision order and such terms and information relating to the supervision order as is required by an authorised Corrective Services Officer and the nature of his past offences to any person as nominated by an authorised Corrective Services Officer who may contact such persons to verify that full disclosure has occurred."
[79] Another proposed condition required by the Respondent to submit and discuss a schedule of his proposed activities.
[80] I consider this repeats another condition and adds nothing useful.
[81] The final contentious condition required him to "not undertake any trip, visit or other activity away from his approved place of residence without the prior written approval of an authorised Corrective Services Officer, unless an authorised Corrective Services Officer dispenses with this requirement.
[82] I find the condition is unduly restrictive. There is a condition that he comply with a curfew direction and I think that condition provides sufficient control and supervision.
[83] I order that the draft order (including Schedule) initialled by me be placed on the file.
[84] The Applicant has applied for this order to be stayed until 4pm on 30 May 2011.
[85] I do so order and I have initialled the draft order with the date of the judgement amended.
Initiating document: Application filed 3 April 2008
THE COURT, being satisfied, on the balance of probabilities, that the respondent Robert John Fardon, has contravened the requirements of an order pursuant to s. 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) made by A Lyons J on 8 November 2006 and as amended by Wilson J on 19 October 2007, ORDERS THAT:
(xix) attend a suitably qualified and experienced mental health practitioner who has been approved by the supervising corrective services officer at a frequency and duration which shall be recommended by the treating suitably qualified and experienced mental health practitioner, the expense of which is to be met by Queensland Corrective Services;
(b) Requirements (x), (xx), (xxi), (xxii), (xxiv) and (xxix) are to be deleted from the order;
(c) amend requirement (xxvi) and insert the following underlined words to read:
(xxvi) Comply with every reasonable direction of the supervising corrective services officer that is not directly inconsistent with a requirement of this order.
(d) amend requirement (xii) and insert the following underlined words to read:
(xii) abstain from violations of the law (including the commission of indictable and other offences), including any offence of a sexual or violent nature.
Signed: . . . . . . . . . . . . . . . . . . . . . . .
(i) be under the supervision of a corrective services officer ('the supervising corrective services officer') for the duration of this order;
(ii) report to the supervising corrective services officer at Queensland Corrective Services Area Office closest to his place of residence between 9 am and 4 pm within 24 hours of his release and therein to advise the officer of the respondent's current name and address;
(iii) reside at all times at a place within the State of Queensland that has received prior approval from a corrective services officer by way of a suitability assessment;
(iv) report to and receive visits from the supervising corrective services officer at such frequency as determined necessary by the supervising corrective services officer;
(v) notify the supervising corrective services officer of every change of the prisoner's name at least seven business days before the change occurs;
(vi) notify the supervising corrective services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is employed, such employment not to involve working with children under 16 years of age;
(vii) notify the supervising corrective services officer of every change of employment at least two business days before the change occurs;
(viii) notify the supervising corrective services officer of every change of the respondent's place of residence at least seven business days before the change occurs;
(ix) not leave or stay out of the State of Queensland without the written permission of the supervising corrective services officer;
(x) not commit an offence of a sexual or violent nature during the period of this order;
(xi) not to initiate or have any direct or indirect contact with a victim of his sexual offences;
(xii) abstain from violations of the law (including the commission of indictable and other offences), including any offence of a sexual or violent nature;
(xiii) abstain from the consumption of alcohol for the duration of this Order;
(xiv) abstain from illicit drugs for the duration of this Order;
(xv) take prescribed drugs only as directed by a medical practitioner;
(xvi) submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a corrective services officer, the expense of which is to be met by Queensland Corrective Services;
(xvii) not visit premises licensed to supply or serve alcohol without the prior permission of the authorised corrective services officer;
(xviii) not go unsupervised to a place that houses children, intellectually disabled persons, mentally ill persons or persons with drug misuse difficulties;
(xix) attend a suitably qualified and experienced mental health practitioner who has been approved by the supervising corrective services officer at a frequency and duration which shall be recommended by the treating suitably qualified and experienced mental health practitioner, the expense of which is to be met by Queensland Corrective Services;
(xx) Deleted as per order of Dick A/J made on 19 May 2011;
(xxi) Deleted as per order of Dick A/J made on 19 May 2011;
(xxii) Deleted as per order of Dick A/J made on 19 May 2011;
(xxiii) Permit any treating psychiatrist, psychologist or counsellor to disclose details of medical treatment and opinions relating to his level of risk of re-offending and compliance with this Order to Queensland Corrective Services if such request is made in writing for the purposes of updating or amending the supervision order and/or ensuring compliance with this Order;
(xxiv) Deleted as per order of Dick A/J made on 19 May 2011;
(xxv) agree to undergo medical testing or treatment (including the testing of testosterone levels by an endocrinologist) as deemed necessary by the treating psychiatrist and supervising corrective services officer, and permit the release of the results and details of the testing to Queensland Corrective Services, if such request is made in writing for the purposes of updating or amending the supervision order, the expense of which is to be met by Queensland Corrective Services;
(xxvi) obey the lawful and reasonable directions of the supervising corrective services officer;
(xxvii) respond truthfully to enquiries by the supervising corrective services officer about his whereabouts and movements generally;
(xxviii) not join, affiliate with, attend on the premises of or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation;
(xxix) Deleted as per order of Dick A/J made on 19 May 2011;
(xxx) not undertake unsupervised care of children;
(xxxi) not establish and maintain contact with children under 16 years of age;
(xxxii) not access pornographic images containing photographs or images of children on a computer or on the internet or in any other format;
(xxxiii) not have any supervised or unsupervised contact with children under 16 years of age except with prior written approval of an authorised corrective services officer. The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the offender to any such guardians or caregivers and the Department of Child Safety in the interests of ensuring the safety of the children.
(xxxiv) Seek permission and obtain approval from an authorised corrective services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;
(xxxv) Not reside at a place by way of short term accommodation including overnight stays without the permission of the authorised corrective services officer;
(xxxvi) Discuss with the authorised corrective services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;
(xxxvii) notify the authorised corrective services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use;
(xxxviii) comply with a curfew direction or a monitoring direction;
(xxxix) not have any contact with the complainant the subject of the proceedings decided by the Court of Appeal on 12 November 2010;
(xl) comply with any reasonable direction given to the Respondent about his accommodation, his rehabilitation or care or treatment or drug or alcohol use, that is not directly inconsistent with an requirement of this order;
(xli) not leave or stay out of Queensland without the permission of a Corrective Services officer;
(xlii) if accommodation is of a temporary or contingency nature, comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services;
(xliii) disclose to an authorised Corrective Services officer upon request the name of each person with whom he associates and respond truthfully to requests for information from an authorised Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour;
(xliv) if directed by an authorised Corrective Services officer, make disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by an authorised Corrective Services officer who may contact such persons to verify that full disclosure has occurred;
(xlv) not to own, possess or regularly utilise more than one mobile phone, except with prior written approval from an authorised Corrective Services officer;
(xlvi) allow any device including a phone or camera to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of an authorised Corrective Services officer;
(xlvii) notify the supervising Corrective Services officer of all personal/intimate relationships entered into by the Respondent and disclose such details of person's including, but not limited to, name, address and phone number;
[3] (2006) QCA 324 at 39.
Attorney-General for the State of Queensland
Fardon
(2006) 80 ALJR 605
(1988) 165 CLR 611