Attorney-General for the State of Queensland v Fardon [2006] QSC 336

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Fardon [2006] QSC 336 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ROBERT JOHN FARDON (respondent) FILE NO/S: BS5346 of 2003 DIVISION: Trial Division PROCEEDING: Civil Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 8 November 2006 DELIVERED AT: Brisbane HEARING DATE: 7 November 2006 JUDGE: Lyons J ORDER: 1. The court is satisfied to the requisite standard that Robert John Fardon is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 2. The respondent be subject to conditions set out in paragraph 24 hereof until 9 November 2016, or further order of the court 3. The continuing detention order made by Justice White made on 6 November 2003 is rescinded; 4. This order is to take effect on 9 November 2006. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – OTHER MATTERS – QUEENSLAND – whether the Dangerous Prisoners (Sexual Offenders) Act 2003 applies to the respondent – whether respondent is a “serious sexual offender” – whether respondent is to be released from prison subject to a supervision order – conditions appropriate and practicable to reduce the risk to -- 1 of 10 -- 2 the community – duration of the order Dangerous Prisoners (Sexual Offenders) Act 2003, Division 3, s 8, s 11, s 13(2), s 13(4), s 20, s 27, s 27(2), s 29, s 30, s 30(3), s 30(5) Fardon v Attorney- General of Queensland (2004) 78 ALJR 1519 COUNSEL: M Hinson SC with M Moloney for the applicant D O’Gorman for the respondent SOLICITORS: Crown Law for the applicant Prisoners Legal Service for the respondent Introduction [1] LYONS J: The respondent, Robert John Fardon, is currently 58 years old and he has spent 27 years in prison for violent sexual offences. Having served the full term of that imprisonment he was due for release on 30 June 2003. On 27 June 2003 an interim detention order was made pursuant to the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). Further interim orders being made on 31 July 2003 and 2 October 2003. On 6 November 2003 Justice White made a continuing detention order and this was affirmed at the first annual review by Justice Moynihan on 11 May 2005. [2] Section 27 of the Act requires that a continuing detention order be reviewed annually and on 10 May 2006 the Attorney-General applied for the second annual review of this continuing detention order pursuant to s 27(2) of the Act. The application was heard on 20 and 21 July 2006 and on 27 September 2006 the Court affirmed the decision that the respondent was a serious danger to the community in the absence of a Division 3 Order. [3] If the Court affirms the decision section 30(3) of the Act provides that the Court may order either that the respondent continue to be subject to a continuing detention order or be released from custody subject to a supervision order. Section 30(4) then provides that in determining whether a continuing detention order or a supervision order should be made the paramount consideration is to be the need to ensure the adequate protection of the community. At the hearing extensive evidence was given by Dr Grant and Dr Neilssen that the risk to the community could be managed if the supervision order contained appropriate conditions. In particular it was considered that the respondent would need intensive support for the first three months after his release. Dr Neilssen specifically stated that the respondent “has passed the age that he represents a serious risk to anyone in the community and that he is now ready for release under supervision”. [4] On 27 September 2006 the final determination of the application for review was adjourned. In the reasons accompanying the order a finding was made that the adequate protection of the community could be ensured if the respondent was subject to a supervision order which contained additional conditions that provided both appropriate supervision and appropriate support. The Draft -- 2 of 10 -- 3 Supervision Order1 then before the court did not however contain those conditions and the matter was adjourned to ascertain if the supervision order could accommodate the extra conditions. The reasons set out a number of factors which were relevant to this finding which were summarised as follows: (1) The respondent has an antisocial personality disorder. (2) With antisocial personality disorders there is a lessening of antisocial and violent behaviours as a person gets older. (3) The respondent does not currently have a psychiatric illness or any symptoms of a mental illness. (4) The respondent does not have a sexual disorder which requires he undertake a sexual offenders treatment program. (5) Studies indicate that offenders released at an older age were less likely to recommit sexual offences. (6) The 1978 offences occurred under the influence of substances and alcohol. (7) The 1988 offences occurred under the influence of alcohol and heroin. (8) The respondent has been drug and alcohol free for the past 15 years. (9) The respondent gave up smoking 9 years ago and has not resumed. (10) The respondent has completed a number of courses in prison including a workplace health and safety course and he holds a forklift certificate. (11) The respondent has been a hard worker in prison and has had a good attendance record at work. (12) The respondent lived in a low security village with minimal supervision within the prison for 9 and a half years. (13) The respondent has handled the disappointments of the last 3 years in a mature fashion. (14) The respondent now has a positive relationship with several women. (15) The respondent has not been breached for a disciplinary offence within the prison system for the last 16 years. (16) The respondent recognises the importance of treatment and has agreed to treatment on release. (17) The respondent’s anxiety when faced with new situations can be managed by way of intensive support on release. (18) The respondent recognises the importance of supervision and has requested supervision. (19) All supervision orders must contain a condition for supervision. (20) If a Corrective Services Officer reasonably suspects that a released prisoner is likely to contravene a condition of the supervision order then a warrant may be applied for and the released prisoner can be brought before the court in relation to the contravention. (21) If the court is satisfied that the released prisoner has contravened or is likely to contravene the supervision order the court may rescind the supervision order. [5] The reasons indicated that the adequate protection of the community could be ensured by the making of a supervision order which contains the conditions generally set out by the applicant in their draft order together with the addition of some further conditions pursuant to s 16(2). These further conditions required that the respondent specifically receive stated support and supervision in the first 1 Exhibit 13 as amended -- 3 of 10 -- 4 three months. The reasons indicated that supervision order should therefore set out that the respondent would attend specific programs and that he would receive specific counselling and support. [6] The reasons indicated that extra conditions which were proposed to be added to the existing Draft Supervision Order pursuant to s 16(2) were: (i) that the respondent receive reintegration counselling from an individual therapist such as an experienced psychologist, psychiatrist, or social worker who is familiar with the needs of discharged long term prisoners and who could assist with any anxiety symptoms which occur and develop strategies to deal stress that he experiences. (ii) that the respondent receive specific counselling in relation remaining abstinent from alcohol and drugs. (iii) that the respondent receive intensive support for the first three months and in particular that he receive 30 hours per week support for the first two weeks and that this support gradually reduce over the three months to four hours per week. [7] As the extra conditions were not able to be implemented immediately as additional funding was required and as the place at which the respondent was to reside needed to receive prior approval from a Corrective Services Officer the supervision order could not be finalised and the final determination of the application for review was adjourned to allow for the finalisation of the terms of the supervision order. [8] On 6 November 2006 the application was re-listed for a determination of the review and for the making of final orders. At that hearing affidavit material indicated that the necessary funding had been obtained and transition planning was underway. In particular a “Transitional Support Plan” was annexed to the affidavit of Michael Airton who is the Executive Director of Offender Assessment and Services in Queensland Corrective Services. The document set out in detail the three phase plan for the respondent’s integration into the community. There was also an indication that transition planning was in fact well under way and the respondent was being supported by a team made up of his nominated Probation and Parole Officer, the prison ministry, Wolston Correctional Staff, as well as treatment providers and friends. [9] At the hearing counsel for the Attorney-General indicated however that the respondent could not be released subject to a supervision order as two requirements of the supervision order had not been satisfied firstly suitable accommodation had not been found and secondly a suitable person had not been found to provide some of the support anticipated by the supervision order. [10] In particular the Affidavit of Linda Bennett indicated that as Regional Coordinator of the Sexual Offending Programs Unit she had made attempts to locate a suitably experienced and qualified mental health practitioner to work with the respondent but despite contacting a list of service providers none were currently able to provide treatment to the respondent. The affidavit indicated that: -- 4 of 10 -- 5 “The reasons ranged from not being able to take on this client, conflict of interest and not possessing the appropriate skills and experience to provide the necessary treatment for an offender with this level of risk, offence history and previous refusal to participate in treatment.” [11] In the circumstances the finalisation of the review was adjourned with the respondent given leave to apply with 48 hours notice. A continuing detention order was made pursuant to s 30(3)(a). [12] On 7 November 2006 the respondent requested that the matter be relisted for finalisation of the orders. At the hearing the respondent indicated that the two previous difficulties had been overcome and that the respondent could therefore be released subject to the supervision order containing the additional requirements. [13] At the hearing a Department of Corrective Services Suitability Assessment Report dated 7 November 2006 was tendered which indicated that the Department had deemed the proposed accommodation, which had been found by the prison ministry, to be suitable and that it complied with the conditions set out in the Draft Supervision Order. [14] The affidavit of Reanna Moloney a solicitor from the Prisoners Legal Service indicated that a medical practitioner had been found who could provide the appropriate counselling and support to the respondent. The affidavit set out that Dr Rosevear was prepared to provide the necessary treatment and that he had the appropriate qualifications and experience to provide the required support. The Curriculum Vitae of Dr Rosevear attached to the affidavit sets out that he had been awarded an Order of Australia Medal in 1998 and that he had significant experience in prisons, particularly “focusing on counselling in Rape, Drugs and Alcohol Problems, Self Harm and Suicide Prevention, Sexuality and Relationships”. In particular he had won awards for his work with men affected by rape and sexual abuse. [15] Counsel on behalf of the Attorney-General indicated however that they would oppose the making of the supervision order on the basis that one of the requirements in the supervision order had not been satisfied namely that a psychiatrist had not been found to undertake the therapy which the respondent required. In particular it was indicated that a treating psychiatrist was necessary as clauses (xix) and (xx) of the Draft Supervision Order “contemplated that the treating psychiatrist would be permitted to disclose details of that person’s opinions about Mr Fardon’s level of re-offending. In other words those risks were to be kept under review and management through the therapeutic intervention of a psychiatrist”. [16] Counsel for the Attorney General indicated that they did not consider that the extra requirements imposed by paragraph 123 of the reasons had been satisfied and even if the extra requirements were able to be satisfied by the services provided by Dr Rosevear the standard requirement in the draft supervision order at paragraphs (xix) and (xx) could not be satisfied. Namely “attend a psychiatrist who has been approved by the supervising corrective services officer at a frequency and duration which shall be recommended by the treating -- 5 of 10 -- 6 psychiatrist” and “permit any treating psychiatrist, psychologist or counsellor to disclose detail of medical treatment and opinions relating to his level or risk of re-offending and compliance with this order.” [17] Counsel for the respondent indicated that the respondent was ready and able to attend to both of the conditions set out in paragraphs (xix) and (xx). [18] At the hearing evidence was given by the coordinator of the prison ministry, who indicated the extensive support that had already been put in place to support the respondent. In particular she advised that the accommodation had been set up with his belongings, furniture and food and that strategies had been put in place to address the respondent’s anticipated anxiety and stress on release. She indicated that the respondent had been under considerable stress due to the uncertainty over his release. The coordinator indicated that she had been through the draft supervision order with him “in some detail and he doesn’t have any problems with the proposed draft, you know, whatever is deemed appropriate by the relevant people that are working with him”. She indicated that he would attend any psychiatrist as required and would allow any treating psychologist, psychiatrist or counsellor to disclose details of his treatment and his levels of risk. [19] Evidence was also given from Jenny Lynas the Unit Coordinator of the Sexual Offender and Dangerous Prisoner Unit within Corrective Services about the level of supervision that would be provided. Ms Lynas indicated that: “…he will be placed on a management regime suitable for DPSOA offenders so we can look at how we can manage his risk purely from a probation and parole perspective, looking at surveillance areas like that, plus looking at and monitoring the contracted service provider in terms of his pre-release planning and continual transition planning.” [20] Ms Linda Bennet the Regional Coordinator of the South east Queensland Sexual Offending Programs Unit and a registered psychologist also gave evidence about the difficulties she had experienced in obtaining the services of a suitably qualified mental health practitioner to work with the respondent. In particular Ms Bennet indicated that she was trying to find a practitioner who could provide treatment for the respondent in relation to his sexual offending. [21] Ms Bennet indicated that on the basis of Dr Rosevear’s CV he would be a person who could provide reintegration counselling and support as required by the extra conditions in paragraph 123 of the reasons. [22] Mr Michael Airton as the Executive Director of Offender Assessment Services also gave evidence of the efforts of the Department to obtain a therapist for the respondent. [23] The essential question is whether the adequate protection of the community can be ensured by the making of the supervision order proposed. [24] The previous draft supervision order has now been amalgamated with the extra conditions and the supervision order proposed is in the following terms: -- 6 of 10 -- 7 (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 the Department of 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; (determining suitability the officer is to have regard to the respondent’s need for drug and alcohol counselling support services, and other relevant factors, including but not limited to proximity to recreational areas, and vulnerable members of the community.) (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, 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; (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 any offence of a sexual or violent nature during the period of this order; (xi) not to contact the victims of his offences; (xii) abstain from violations of the law; (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 alcohol and drug testing as directed by a corrective services officer, the expense of which is to be met by the Department of Corrective Services; (xvii) not visit premises licensed to supply or serve alcohol without the consent of the supervising corrective services officer. -- 7 of 10 -- 8 (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 psychiatrist who has been approved by the supervising corrective services officer at a frequency and duration which shall be recommended by the treating psychiatrist, the expense of which is to be met by the Department of Corrective Services; (xx) receive reintegration counselling from an individual therapist such as an experienced psychologist, psychiatrist, or social worker who is familiar with the needs of discharged long tem prisoners and who could assist with any anxiety symptoms which occur and develop strategies to deal with stress that he experiences the expense of which is to be met by the Department of Corrective Services; (xxi) receive specific counselling from an individual therapist such as an experienced psychologist, psychiatrist, or social worker in relation to remaining abstinent from alcohol and drugs the expense of which is to be met by the Department of Corrective Services; (xxii) receive intensive support for the first three months and in particular that he receive 30 hours per week support for the first two weeks and that this support gradually reduce over the three months to four hours per week. The details of the transitional support plan are those agreed to between Queensland Corrective Services and the respondent. (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 the Department of 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) attend any program, course, psychologist or counsellor, in a group or individual capacity, as directed by the treating psychiatrist and the supervising corrective services officer the expense of which is to be met by the Department of Corrective Services; (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 the Department of Corrective Services, if such a request is made in writing for the purposes of updating or amending the supervision order, the expense of which is to be met by the Department of Corrective Services; (xxvi) obey the lawful and reasonable directions of the supervising corrective services officer; -- 8 of 10 -- 9 (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) not visit public parks without prior written permission from the supervising corrective services officer; (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. [25] Section 16 of the Act sets out the requirements that must be contained in a supervision order. Those requirements have been complied with. [26] Paragraph 123 of the reasons set out the extra conditions which were imposed pursuant to s 16(2) to specifically manage the risks presented by the respondents release. I consider that Dr Rosevear is a person who can supply the reintegration counselling as he is a person who is familiar with the needs of discharged long term prisoners and he can assist with any anxiety symptoms which occur and can develop strategies to deal with the stress the respondent experiences. He can also give specific counselling in relation to drugs and alcohol. The intensive support package has been fully funded and is in fact operating. I am satisfied that the extra conditions required by the reasons of 27 September 2006 have been complied with. [27] The supervision order contains a requirement which the respondent has agreed with that he will attend a psychiatrist approved by the supervising corrective services officer. Such a psychiatrist is not yet available. Should this fact prevent the respondent’s release? [28] There were specific findings in the reasons dated 27 September 2006, based on the assessments of Dr Grant and Dr Neilssen that: (i) The respondent does not currently have a psychiatric illness or any symptoms of a mental illness. (ii) The respondent does not have a sexual disorder which requires he undertake a sexual offenders treatment program. [29] Whilst the respondent has agreed to undertake whatever treatment is considered necessary by the supervising corrective services officer there is no evidence that treatment is required to manage the risk that the respondent presents to the community. Counsel for the Attorney-General has indicated that apart from treatment a vital role that the psychiatrist plays in relation to the management of the risk is their ability to advise Corrective Services if there are any concerns about the respondent risk of re-offending. This requirement to advise the supervising Corrective Services officer of the respondent’s risk of re-offending also applies to Dr Rosevear. -- 9 of 10 -- 10 [30] Accordingly in the circumstances I am satisfied that the adequate protection of the community can be ensured by the making of a supervision order in the terms set out in paragraph 24. Orders 1. The court is satisfied to the requisite standard that Robert John Fardon is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003. 2. The respondent be subject to conditions set out in paragraph 24 hereof until 9 November 2016, or further order of the court. 3. The continuing detention order made by Justice White made on 6 November 2003 is rescinded. 4. This order is to take effect on 9 November 2006. -- 10 of 10 --