Attorney-General for the State of Queensland v Fardon [2011] QCA 155

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Fardon [2011] QCA 155 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (appellant) v ROBERT JOHN FARDON (respondent) FILE NOS: Appeal No 4240 of 2011 SC No 5346 of 2003 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 1 July 2011 DELIVERED AT: Brisbane HEARING DATE: 23 June 2011 JUDGES: Chief Justice, Fraser JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. That the appeal be allowed; 2. That the order made 20 May 2011 be set aside; and 3. Under s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, that the supervision order made on 19 October 2007 be rescinded and the respondent be detained in custody for an indefinite term for care, control or treatment. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where appellant seeks rescission of the supervision order and order that the respondent be detained in custody for an indefinite term – where respondent is 62 years old with serious criminal history – where respondent had contravened existing supervision order by visiting licensed premises and going unsupervised to the residence of an intellectually disabled person – where there was uncontested evidence that the respondent was likely to contravene the supervision order – where primary judge found that the contraventions had -- 1 of 11 -- 2 occurred, and had ordered that the respondent be released from custody subject to an amended supervision order – whether it was reasonably open to the primary judge to conclude that the community would be adequately protected with an appropriately amended supervision order – whether the primary judge gave adequate reasons for her conclusion – whether the failure of the respondent to give evidence was significant Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld), s 13(5)(a), s 17(1), s 22(2), s 22(7) Attorney-General v Fardon [2003] QSC 379, cited Attorney-General for the State of Queensland v Fardon [2006] QSC 275, cited Attorney-General for the State of Queensland v Fardon [2006] QSC 336, cited A-G (Qld) v Fardon [2006] QCA 512, cited A-G (Qld) v Fardon [2007] QSC 299, cited A-G for the State of Qld v Fardon [2011] QSC 18, cited Attorney-General for the State of Queensland v Fardon (No 2) [2011] QSC 128, overruled Attorney-General for the State of Queensland v Fardon [2011] QCA 111, considered Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited R v Fardon [2010] QCA 317, cited COUNSEL: P J Davis SC, with A D Scott, for the appellant D P O'Gorman SC, with M G Nolan, for the respondent SOLICITORS: Crown Law for the appellant Patrick Murphy Solicitor for the respondent CHIEF JUSTICE: Introduction [1] The Attorney-General appeals against an order made in the Trial Division on 20 May 2011, that the respondent continue to be subject to the supervision order made by A Lyons J on 8 November 2006 (and amended by Margaret Wilson J on 19 October 2007), with some additions to and amendments of the conditions to which that order was subject. The appellant seeks the rescission of the supervision order and an order that the respondent be detained in custody for an indefinite term for care, control or treatment (or alternatively, that the supervision order be amended further, or the matter remitted for rehearing). Prior proceedings [2] The respondent is 62 years of age. He has a serious past criminal history dating from a conviction in 1967, when he was aged 18 years, for attempted unlawful carnal knowledge of a girl aged under 10. He was then released on a good behaviour bond. -- 2 of 11 -- 3 [3] In 1978, the respondent raped and indecently dealt with a 12 year old girl, occasioning serious injury, and wounded her 15 year old sister who had come to her aid. He was arrested on those charges and on 16 March 1979 released on bail. He absconded to the Northern Territory and 18 months later was extradited to Queensland, where on 8 October 1980 he pleaded guilty and was sentenced to 13 years imprisonment. [4] The respondent completed eight years of that term and was released to work from May 1988 until 26 July 1988. While on parole in September that year, he travelled without authority to Townsville. On 4 October 1988, which was 20 days after he had been released from custody, he engaged in a prolonged violent assault upon a woman who he said had offered him sex in return for drugs. He was subsequently convicted of rape, sodomy and assault occasioning bodily harm, and sentenced to a term of 14 years imprisonment, which was to expire on 27 June 2003. [5] On 6 November 2003, White J ordered1, under the Dangerous Prisoners (Sexual Offenders) Act 2003, that the respondent be detained in custody for an indefinite term for control, care or treatment (s 13(5)(a)). That was premised on her Honour’s satisfaction that absent such an order, the respondent would be a serious danger to the community. The order was reviewed annually, as the legislation requires, and maintained until the year 2006. On 27 September 2006, A Lyons J ordered that the respondent be released subject to a supervision order containing 32 conditions2. [6] The respondent contravened the order made on 27 September 2006. There were three contraventions: on 4 May 2007, he attended a school on a pre-arranged visit to address year 11 students; on 11 July 2007, he aided a neighbour who was also subject to a supervision order to disobey a curfew restriction; and on 21 July 2007, after discharge from custody on 13 July 2007 following his arrest on 12 July, he travelled without authority to Townsville. [7] The respondent was consequently, under the legislative scheme, returned to custody. On 19 October 2007, Margaret Wilson J ordered that he again be released on the supervision order, although subject to some further amendment3. [8] Then on 3 April 2008, the respondent was apprehended and detained following a complaint of rape made by a 61 year intellectually disabled woman. The respondent was on 14 May 2010 convicted in the District Court of rape, but on 12 November 2010 the Court of Appeal quashed that conviction and entered a verdict of acquittal, on the basis “that it was not open to the jury to be satisfied beyond a reasonable doubt” of the respondent’s guilt4. [9] On 25 November 2010 the respondent applied for the dismissal of the related contravention proceeding or for release on an interim basis until that proceeding could be determined. On 2 December 2010, directions were given for the preparation of a psychiatric assessment of the respondent. On 16 February 2011 A Lyons J refused to order interim release5. 1 Attorney-General v Fardon [2003] QSC 379. 2 Attorney-General for the State of Queensland v Fardon [2006] QSC 275. The 32 conditions were set out in Her Honour’s order of 8 November 2006: Attorney-General for the State of Queensland v Fardon [2006] QSC 336. The order was upheld on appeal: A-G (Qld) v Fardon [2006] QCA 512. 3 A-G (Qld) v Fardon [2007] QSC 299. 4 R v Fardon [2010] QCA 317 at para 65. 5 A-G for the State of Qld v Fardon [2011] QSC 18. -- 3 of 11 -- 4 [10] The contraventions, which led to the primary proceeding founding this appeal, arose from the circumstances of the association between the respondent and the intellectually disabled complainant involved in the rape allegation: first, a breach of condition (xvii) – the respondent visited licensed premises without the permission of his supervisor (he and the complainant spent time at a surf life saving club prior to going to the place where the sexual relations occurred); and second, a breach of condition (xviii) – the respondent went unsupervised to the residence of an intellectually disabled person. The primary judgment [11] On 20 May 2011, Dick AJ ordered that the respondent be released from custody subject to an amended supervision order6. Her Honour found that the contraventions had occurred, and said she would not characterize them as “mere minor or technical breaches”. It was necessary for her then to consider whether the respondent had satisfied the court, on the balance of probabilities, that “adequate protection of the community” could, despite the contraventions, be ensured by an appropriately amended supervision order: otherwise, she was required to “rescind [the supervision order] and make a continuing detention order” (s 22(2)). [12] Her Honour canvassed the opinions of the psychiatrists Drs Grant and Harden, summarized the submissions of Counsel, then recorded these findings: “[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, 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 6 Attorney-General for the State of Queensland v Fardon (No 2) [2011] QSC 128. -- 4 of 11 -- 5 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.” [Footnotes omitted] The grounds of appeal [13] The appellant contends that the Judge could not have been satisfied that adequate protection of the community could be ensured where the uncontested evidence showed that further breaches were highly likely. [14] The appellant also challenged the Judge’s approach in a number of particular respects: applying wrong principles, considering whether the respondent was a serious danger to the community where that was already established, attributing significance to the acquittal of rape, failing to take account of the respondent’s failure to give evidence, and not giving detailed reasons. [15] The grounds of appeal are fully expressed as follows: “(i) The discretion of the primary judge under section 22(7) of the Act miscarried by reason that the primary judge misdirected herself as to legal principles pertaining to indefinite sentencing; (ii) The discretion of the primary judge under section 22(7) of the Act miscarried by reason that the primary judge misdirected herself by considering the onus and standard of proof for deciding whether the Respondent is a serious danger to the community when such determination had already been made; (iii) The discretion of the primary judge under section 22(7) of the Act miscarried by reason that the primary judge took into account an irrelevant consideration, namely that the Respondent was acquitted of charges of rape which arose out of the same circumstances that led to the Appellant's application under section 22 of the Act, when the real issue was whether the Respondent could satisfy the Court that a supervision order would adequately protect the community; (iv) The discretion of the primary judge under section 22(7) of the Act miscarried by reason that the primary judge failed to consider the Respondent’s failure to give evidence in the Application and the effect of that failure on his ability to discharge his onus of proof under the section; (v) The discretion of the primary judge under section 22(7) of the Act miscarried by reason that the primary judge erred in law by not giving detailed reasons, as required by section 17 of the Act, as to why the Respondent should be released subject to a supervision order; -- 5 of 11 -- 6 (vi) There was no basis upon which the primary judge could have found that a supervision order would adequately protect the community when the uncontested evidence was that breaches of the supervision order by the Respondent is highly likely; and (vii) The decision is:- (a) contrary to the evidence; (b) unsupported by the evidence; and (c) unreasonable” The evidence before the primary Judge [16] My analysis of the grounds of appeal will be facilitated by reference now to the evidence before the learned Judge. The evidence relates to the issue the Judge was obliged to address: whether the respondent established, on the balance of probabilities, that despite his contraventions of the supervision order, the adequate protection of the community could be ensured by a further amended supervision order. That involved attention to the prospect of the respondent’s breaching such an order, the nature of any prospective breaches, and any prospective impact on the security of the community. [17] In a joint report of 2 March 2011, Drs Grant and Harden expressed these opinions: “He is at moderate to high risk of reoffence sexually in the community with no constraints on his behaviour. This risk can be reduced if he is released on a supervision order, particularly as this relates to abstinence from alcohol and drug use. Due to his antisocial personality and institutionalisation there is a significant chance of him breaching conditions on a supervision order at some point in the future. 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.” [18] In a separate report of 4 February 2011, Dr Harden said: “To summarise it is my opinion that he is at moderate to high risk of reoffence sexually in the community with no constraints on his behaviour. If he were to reoffend based on his past behaviour it would most likely be in the context of substance intoxication and would be opportunistic rather than planned. It is my opinion that this risk can be decreased to low to moderate if he were to be released from custody with a stringent supervision order being continued particularly if this maintained his abstinence from alcohol and drug use.” [19] In Dr Grant’s separate report of 17 January 2011, he dealt with the prospect of further contravention of a supervision order, and offered the reason why that prospect was “high”: -- 6 of 11 -- 7 “I believe there would be a high risk of contravention of any future supervision order arising from Mr Fardon’s attitudes to authority and control, along with his institutionalization and difficulties adjusting to life in the community. Given the high risk of breaching a supervision order I consider the likelihood of him returning to incarceration if released would be high and there must be considerable doubt therefore about the prospect of successful management in the community under such a supervision order.” [20] Elsewhere in that report, Dr Grant provides information and opinion in relation to the respondent’s “attitudes to authority and control”. I set out these extracts: “His attitude to the supervision order in general was clearly somewhat contemptuous and his behaviour in general since release from prison has not been indicative of good insight, good behavioural control or of good potential to adjust to life outside prison. Rather, his behaviour has been imbued with his experience of prison culture and negative attitudes to authority. This is consistent with his very long prison experience, incarceration for much of his adult life and also consistent with his psychopathic personality traits. (AB pp 1692) … Mr Fardon’s opinion in regard to his release from prison was that ‘Queensland Corrections never wanted me out, that’s the bottom line’. He believes that every effort has subsequently been made to get him back into prison and that the attitude of QCS has been ‘quite antagonistic’. (AB pp1682) … Between October 2007 and April 2008 Mr Fardon was not charged with any contraventions of the supervision order. However, he reports an atmosphere of ongoing confrontation and conflict with QCS in regard to his activities. For example, he refused to pay rent at the Wacol precinct because he saw it as living in jail. He indicated that he had considerable difficulties adjusting to life outside prison and that he wasn’t ‘a model of consistency’ in regard to his behaviour. He saw the environment at Wacol as one that forced him to congregate with other ex-prisoners and that it was a pseudo-prison environment in which the ex-prisoners lived a ‘snide, devious life’, trying to work out how they could get around supervision orders without being caught. He said ‘The people there all live a prison life. They are devious, ducking and weaving. When you are placed with liars, cheats and sex offenders what are Corrections trying to achieve?’. Mr Fardon said that he couldn’t refuse requests of other ex-prisoners to give them lifts in his car, even if it meant that they were undertaking activities that were a breach of their supervision orders (such as buying alcohol and smuggling it back into the precinct or going to licensed premises without permission). (AB pp1682-3) … Mr Fardon described many confrontations with QCS in regard to the reporting of his activities. He believed that QCS did not have the right to interfere with somebody else’s life, even if they could -- 7 of 11 -- 8 interfere with his. He therefore would refuse to say who he had been visiting when he left the precinct. He would not report that he was staying overnight outside the precinct prior to October 2007 when the conditions of his supervision order were sufficiently lax to enable him to get away with that. (AB pp1683) … Mr Fardon’s behaviour on his supervision order whilst in the community indicates that there is high likelihood of future contraventions of any supervision order and his behaviour undermines confidence that he can be safely managed in the community. He admits that he has paid scant attention to the requirements of his supervision order in the past, but rather has approached the order with the attitude derived from his prison life; that is, how he can get around the requirements of his supervision order or escape detection for breaches rather than how he can live productively with the prescribed conditions of the order. The breaches of the order which he has committed indicate a general lack of respect for the order rather than seeking specifically to sexually re- offend.” (AB pp1693) [21] Dr Grant was cross-examined as to some of those matters (AB pp 6 to 7): “…you say that, ‘His behaviour on his supervision order whilst in the community indicates that there is a high likelihood of future contraventions.’ Do you see that? -- Yes. What behaviour are you referring to?-- Well, his - he told me that he had often not told his supervising officers of what he’d been doing because he knew that they wouldn’t see it as within the supervision order, such as spending time – nights on the Gold Coast when before he was on a curfew. Before he was on a curfew?-- That was before he was on a curfew, yes. That’s right, yes?-- But he wasn’t honest with them in regard to his behaviour in various ways. He’d been to licensed premises and he knew that was not allowed under his supervision order. He’d – he believed – he told me, ‘Oh, there’s probably a number of ways they could get me if they want to for things I have done that are not on the order.’ He’d done things that he knew he might get punished for which are not actually probably part of the order but things like travelling on trains without tickets and so on. Because he didn’t understand how to obtain a ticket?-- Well, that’s what he said, yes. Yes?-- Initially at least ---- Yes?-- ----that he didn’t understand how to get a ticket. That stemmed from the fact that you now have to go to ticket boxes and self-serve, that sort of thing?-- I think that was the issue. Yes?-- He – I mean, he was very institutionalised to prison life. -- 8 of 11 -- 9 Exactly?-- He had no experience of the outside world for many years and things have changed a lot in the way of how you have to use ATMs and automatic ticket machines and the like. And the – being on licensed premises, that was on the day in question, wasn’t it---?-- Well---- ----that he was referring to?-- Well, he was referring to that, but I – I don’t know that I’ve written down, but I got the impression that it might have been on more than that one occasion, but it was certainly on that occasion that ---- Well, you didn’t ask him that, did you?-- Not specifically, no. No. So the only occasion that you’re aware of is the day in question, when he went with the lady consenting?-- Well, he told me that he had been – that he had driven his co-residents in his car to collect alcohol, but said that he didn’t drink it. He said that he’d taken co- residents down to bottle shops, licensed premises to purchase alcohol which they smuggled back into the residences and that he was with them in the residences when they were drinking, but he says he didn’t drink despite their pressure to get him to drink and he said whenever he was tested he was never found to have been drinking, but he’d told me about those episodes, which I suppose is also attending licensed premises.” [22] Evidence of the respondent’s case manager, Mr Spelman, suggests that the respondent was less than candid in responding to Mr Spelman’s enquiries in relation to the relevant conditions, (xvii) and (xviii), not disclosing visiting licensed premises and the house of an intellectually disabled person (although the respondent has said that he does not regard the complainant as intellectually handicapped). Analysis [23] It suffices to focus on appeal ground (vi): was it reasonably open for her Honour to conclude that with an appropriately amended supervision order in place, the community would be adequately protected were the respondent to be released from custody? [24] The Judge was statutorily obliged to give “detailed reasons” for making the order she made (s 17(1)), and they must have included the reasons for her conclusion that adequate community protection would in these circumstances be ensured (s 22(7)). [25] Having referred to Dr Grant’s observation about the high likelihood of future contraventions, “arising from the Respondents attitude to authority” (sic), her Honour said that the legislation does not contemplate that “the arrangements to prevent any risk must be ‘water tight’”, and then expressed her conclusion that adequate community protection can be ensured by a supervision order. [26] In my respectful view, the unchallenged evidence, extracted above, in relation to the respondent’s “attitude to authority and control”, meant that the conclusion her Honour ultimately reached was not reasonably open, and I repeat the summary provided by Dr Grant: “I believe there would be a high risk of contravention of any future supervision order arising from Mr Fardon’s attitudes to -- 9 of 11 -- 10 authority and control, along with his institutionalization and difficulties adjusting to life in the community. Given the high risk of breaching a supervision order I consider the likelihood of him returning to incarceration if released would be high and there must be considerable doubt therefore about the prospect of successful management in the community under such a supervision order.” [27] Her Honour made no more than a passing reference to that important body of evidence (extracted in paras [19] to [21] above). Assuming that she took account of it, it was unsatisfactory then to conclude that adequate community protection could nevertheless be ensured because these orders can never be guaranteed as “water tight”. As observed by Chesterman JA when determining a stay application on 3 June 2011, “there is no stated, reasoned, basis for the conclusion. The basis for confidence that the order will adequately protect the community is therefore not apparent”7. [28] While in some respects the respondent has adhered to important conditions, such as abstention from alcohol and illicit drugs, returning negative results on random testing, it is his present unwillingness fully to commit to the supervision regime, manifested in his disregarding and circumventing it, which precluded the conclusion that releasing him under a supervision order would ensure adequate community protection. It was not reasonably open, on all of this evidence, to conclude that a supervision order would be “efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences” (Attorney-General for the State of Queensland v Fardon [2011] QCA 111 per Chesterman JA at para 29). [29] These orders have the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a regime of tight control. Of substantial present concern is the respondent’s demonstrated unwillingness to submit fully to that regime, hence Dr Grant’s conclusion that “there must be considerable doubt therefore about the prospect of successful management in the community under such a supervision order”. [30] There is one additional matter I should mention. Counsel for the appellant referred, as being significant, to the respondent’s failure to give evidence. Before her Honour, Counsel for the appellant presented that as the respondent’s “central problem”: it should therefore have been addressed in any set of “detailed reasons”, but was not. Even though the respondent carried the burden of establishing that adequate community protection could be ensured, he was not obliged to give evidence. However, evidence from the respondent could helpfully have borne on the question of his preparedness and capacity to adhere fully to the supervisory regime, especially where the likelihood of contravention, resulting from his attitude, was of considerable expressed concern for the psychiatrists. Nevertheless, the unchallenged evidence before the Judge left her Honour able to reach a reliable conclusion on the ultimate issue, although in my respectful view, the conclusion she did reach was not reasonably open. Conclusion [31] I would order: 7 Attorney-General for the State of Queensland v Fardon [2011] QCA 111 at para 30. -- 10 of 11 -- 11 1. that the appeal be allowed; 2. that the order made on 20 May 2011 be set aside; and 3. under s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, that the supervision order made on 19 October 2007 be rescinded and the respondent be detained in custody for an indefinite term for care, control or treatment. [32] FRASER JA: I agree with the reasons for judgment of the Chief Justice and the orders proposed by his Honour. [33] MULLINS J: I agree with the Chief Justice. -- 11 of 11 --