The Applicant's submissions were framed by the contention that SFPH gave evidence in a candid manner, and had taken responsibility for his behaviour. It was further contended that SFPH had experienced significant growth since incarceration, particularly in relation to his mental health. In short, it was put that he now has mental health literacy, which is a protective factor against recidivism. While it was acknowledged the Applicant had previously not been responsive to court ordered assistance and did not understand PTSD, much of the surrounding conversation was between specialists and his lawyers.
It was submitted that SFPH has engaged with treatment, has not offended since the last recorded occasion, and is motivated to behave as he found time away from his family while incarcerated to be hard. The Applicant's partner appeared confused about the nature of his most serious offending, but indicated her support, as did his sister. SFPH has also produced written evidence of support from his family and, further, Mr Cummins stated in evidence it was not critical that the Applicant be completely candid with his family.
It was also contended that ice had had a particular impact in the past, but the Applicant had been drug-free for around eight years, despite drugs being accessible. With respect to reports of poor behaviour in detention, it was contended these are one-sided but as they relate to yelling, nothing substantially pertinent to the question of danger arises. It was also submitted SFPH has been tested during two separate periods in the community and no adverse reports had arisen (totalling eight months, Reply [3]). He has experienced some financial pressure, was under the conditions of a BVR, but had not relapsed, nor offended. Rather, SFPH had demonstrated a pro-active attitude including by addressing the fines said to have accumulated in his name. Finally, Mr Cummins had assessed the Applicant at a low risk of sexual or violent reoffending and was of the opinion SFPH had acknowledged the impact of his offending, and had shown unusual resilience. Significant impact should be placed on more recent reports, including Mr Cummins (Reply [9]).
I note the Applicant's extensive written submissions addressing: formal risk assessment [51]-[62]; remorse [63]-[67]; prospects of rehabilitation [68]-[[69]; views of friends and family [70]; contribution to the community [71]; and on the impact of the BVR [72]-[75].
It was submitted for the Respondent that the real question is likelihood of harm arising in the future. With respect to the weight to be afforded the various professional reports, the Respondent contended that earlier reports, particularly that of Mr Candlish should be given consideration due to the fact that Mr Cummins relied largely upon self-reporting from SFPH. Specifically, for example, the Applicant sought to discredit victims when meeting Mr Candlish, and had given a version of events contrary to sentencing remarks to Mr Cummins (see also RSFIC [60]-[61]). I also note the further detailed comparison of clinical material in the RSFIC [60]-[68]. Consistent with this, at the hearing it was contended that even Mr Cummins' assessment that the Applicant was at a lower level of risk of reoffending could still contribute to a finding of danger.
Some support for this was said to be found in reports of incidents in prison and detention. While the weight afforded reports from detention was a matter for the Tribunal, it was put that the Applicant had ultimately accepted the use of aggressive language. Other relevant considerations have been identified in the RSFIC [69]. It is contended, for example, that the lack of incidents in the community is not necessarily an indicator there is no risk, particularly given evidence that the ankle monitor is a reminder of his situation and BVR conditions. Reference was also made in submissions to SFPH's prior non-compliance with orders, and earlier encounters with relevant professional services.
Further, it was contended that given the diagnosis of PTSD, the Applicant's current therapeutic needs have not been entirely fulfilled. On SFPH's evidence, he was engaging less frequently than indicated in written material, and it is yet to be seen if he would continue to engage. Similar submissions were made in respect of SFPH's engagement with treatment to address the risk of relapse into drug use. Noting his extensive past history of use, the evidence about 12 step programs was superficial. Accordingly, there is a risk of relapse. Given the history of misconduct when under financial pressure, the assessment by Mr Cummins that SFPH has the tools to manage has not been tested over a prolonged period.
Finally, in respect of personal supports, it was submitted that the Applicant's family had all been present in his life before, and this had not prevented offending. It was acknowledged that there are indications that support will be provided, but - in particular - SFPH's partner is interstate and it is not clear how or when direct support would be provided.
There are multiple sources of clinical risk assessment in this matter. I accept that the evaluation of Mr Candlish is very robust and thorough, however, I consider it not up to date. In any event, the recommendations it carries have indeed been pursued and SFPH has engaged in appropriate therapy and continues to do so. The Respondent was correct to seek a more accurate estimate of time committed by the Applicant, however, this does not fundamentally change the relevance of ongoing therapeutic support, a matter attested to by Mr Cummins. Overall, it appears to me that the present risk rating of low for both sexual and violent offending is therefore consistent with the earlier clinical material. I also note Mr Candlish's assessment that the Applicant be supported in the community.
Given my findings above about the nature and circumstances of the most serious offending, the evidence indicates that further offending would likely require a process to unfold. SFPH is presently emotionally and psychologically stable (concerns about the BVR aside) and a break or failure of treatment would need to occur, such that the Applicant also engages in substance abuse and/or substantially loses his mental or emotional equilibrium, and conditions then lead to offending. I consider he is in fact in a somewhat precarious position financially at the moment and is having difficulty obtaining employment. However, he has the professional support identified as necessary by Mr Candlish, and his resilience (as identified by Mr Cummins) appears to be reflected in his capacity to systematically handle the purported outstanding debts. Personal and family support is adequate in the circumstances notwithstanding SFPH's partner appears not well informed about his past.
I consider that any reoffending, given his record, would likely be harmful to the community, but I accept the latest clinical risk assessments, and consider that the risk is presently managed well. His resilience and ongoing treatment demonstrate to my satisfaction that the conditions likely to be needed to bring about further offending are unlikely to arise. Furthermore, this conclusion is reinforced by the additional layers of monitoring that come from the BVR conditions, and sex offender registration, overlapping as they do.
[2]
I noted above the important features of SPFH's criminal record, including it being somewhat confined in time, and the evidence demonstrates that his more serious offending was a factor of a particular dysfunction then prevailing in his life. There does appear to be evidence demonstrating that the Applicant has had opportunities in the past to grapple seriously with his underlying psychosocial problems, on a foundation of substantial trauma. However, even were I to accept this as a critical consideration, it has been demonstrated to my satisfaction, as noted, that SFPH is now in a position to deploy knowledge, skills and commitment to treatment to further pursue his wellbeing.
It cannot be denied that a repeat of SFPH's worst behaviour would cause harm to the community. However, I must consider the likelihood overall of this eventuating. I accept the current clinical evidence as to the low risk that the Applicant poses, and I do not consider there to be a significant possibility of this behaviour in fact being repeated.
[3]
For the reasons given above, the Tribunal sets aside the decision under review and remits it for reconsideration in accordance with the finding that the Applicant is not a danger to the community.
[4]
Ms Kristina Petrovski from Sparke Helmore Lawyers
Parties
Applicant/Plaintiff:
SLGS
Respondent/Defendant:
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Legislation Cited (1)
Review Tribunal Act 2024
Cases Cited (3)
SFPH and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 784 (10 June 2025)
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2023] FCAFC 104