Attorney-General for the State of Queensland v Fardon [2005] QSC 137

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Fardon [2005] QSC 137 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ROBERT JOHN FARDON (respondent) FILE NO/S: BS5346 of 2003 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 11 May 2005 DELIVERED AT: Brisbane HEARING DATE: 8 and 9 February 2005 JUDGE: Moynihan J ORDER: 1. That the respondent continue to be the subject of a continuing detention order. CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – STATUTORY POWERS AND DUTIES – EXERCISE – GENERAL MATTERS – where respondent ordered to be detained in custody pursuant to Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) for indefinite term for control, care and treatment – where Attorney-General made application for order to be reviewed at end of one year – where court is to be satisfied that there is serious danger to community because of unacceptable risk the prisoner will commit serious sexual offence if released, or released unsupervised. Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Attorney-General (Qld) v Downs [2005] QSC 016; Attorney-General (Qld) v Fardon [2003] QSC 379; Attorney-General (Qld) v Fardon [2003] QCA 416; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519; Grassby v The Queen (1989) 168 CLR 1; M v M (1988) 166 CLR 69. -- 1 of 20 -- 2 COUNSEL: Mr M Hinson SC for the applicant Mr D Ross SC for the respondent SOLICITORS: Crown Solicitor for the applicant Robertson O’Gorman Solicitors for the respondent Introduction [1] On 6 November 2003 White J ordered, pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act), that Robert John Fardon (the respondent) be detained in custody for an indefinite term for control, care and treatment; Attorney-General (Qld) v Fardon1 . [2] Section 27 of the Act requires that such an order be reviewed at the end of one year after it was made. The Attorney-General is to make an application for such a review and has done so. This is the outcome of the review. The Act and provision for review: [3] Put shortly the Act provides for the continued detention of a prisoner in a particular category when the court is satisfied that there is a serious danger to the community because of an unacceptable risk the prisoner will commit a serious sexual offence if released, or released unsupervised. [4] The constitutional validity of the Act was upheld first by the Court of Appeal Division of this court (Attorney-General (Qld) v Fardon2 ) and, subsequent to White J’s decision, by the High Court; Fardon v Attorney-General (Qld)3 . [5] The objects of the Act are stated by s 3 to be: “(a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure the adequate protection of the community; and (b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation”; [6] The Act provides for the Attorney-General to apply for an interim detention order, then for a continuing detention order or a supervision order “in relation to a prisoner”; s 5. The order of 6 November 2003 is a continuing detention order. [7] A “prisoner” is a person detained in custody who is: “… serving a period of imprisonment for a serious sexual offence, or serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence: …” s 5(6). 1 [2003] QSC 379 2 [2003] QCA 416 3 (2004) 78 ALJR 1519 -- 2 of 20 -- 3 [8] A “serious sexual offence” means an offence of a sexual nature whether committed in or outside Queensland involving violence or an offence of a sexual nature against children. “Violence” includes intimidation and threats; see the dictionary scheduled to the Act. The respondent satisfies these requirements. [9] Division 3 provides for continuing detention or supervision orders involving conditions of supervised release4 if the court is satisfied the prisoner is; “a serious danger to the community if released without an order made under the division.” [10] The applicant has the onus of proving the respondent is a serious danger to the community. A prisoner is a serious danger to the community: “… if there is an unacceptable risk that the prisoner will commit a serious sexual offence – (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made.”; s 13(2) [11] The expression “unacceptable risk” is not defined by the Act. It is not a question of close definition but of achieving a proper balance between the risk of danger to the community, liberty of the citizen and the other consideration the Act requires to be taken into account; see Fardon v Attorney-General (Qld)5 [23]- [25] citing M v M6 at 70 and per Byrne J in Attorney-General (Qld) v Downs 7 . [12] As I have said this is the first annual review under s 27 of the Act of the indeterminate detention order made by White J on 6 November 2003. Section 30 of the Act provides for such reviews: “(1) This section applies if, on the hearing of a review under section 27 or 28 and having regard to the matters mentioned in section 13(4), the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order. (2) On the hearing of the review, the court may affirm the decision only if it is satisfied - (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to affirm the decision. (3) If the court affirms the decision, the court may order that the prisoner - 4 ss 13(5), 14, 15 and 16 5 (2004) 78 ALJR 1519 6 (1988) 166 CLR 69 7 [2005] QSC 016 -- 3 of 20 -- 4 (a) continue to be subject to the continuing detention order; or (b) be released from custody subject to a supervision order. (4) In deciding whether to make an order under subsection (3)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community. (5) If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order. [13] The “matters mentioned” in s 13(4) to which the court is to have regard are: “(4) … (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedents and criminal history; (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (i) the need to protect members of the community from that risk; (j) any other relevant matter.” -- 4 of 20 -- 5 [14] In the context of a review pursuant to s 27 s 29(1) requires the chief executive corrective services to arrange for the respondent to be examined by two psychiatrists. Section 11 of the Act requires that the psychiatrists are to provide a report which “must indicate” – “(2) (a) the psychiatrist’s assessment of the level of risk that the prisoner will commit another serious sexual offence – (i) if released from custody; or (ii) if released from custody without a supervision order being made; and (b) the reasons for the psychiatrist’s assessment. [15] Dr Robert Moyle, psychiatrist specialising in forensic and general adult psychiatry, private practice, Bachelor of Medicine, Bachelor of Surgery, Fellow of the Royal Australian and New Zealand College of Psychiatry, Member of the Royal Australian College of Medical Administrators and Professor Basil James, Bachelor of Science, Bachelor of Medicine, Bachelor of Surgery, Diploma of Psychological Medicine, Fellow of Royal Australian and New Zealand College of Psychiatrists, Fellow of Royal Australasian College of Physicians, Fellow of Royal College of Psychiatrists U.K. provided reports pursuant to s 29 of the Act, gave evidence and were cross examined. The hearing [16] In addition to Professor James and Dr Moyle the applicant relied on the affidavit evidence of Greg Brown, General Manager, Wolston Correctional Centre; Russell John Fraser, Counsellor, private practice, Bachelor of Social Work, Graduate Diploma in Adult Education; Graham Martin Kennedy, Drug and Alcohol Counsellor (retired), Townsville Correctional Centre, Certificate in Addiction Studies (NZ); Marion Lees, Senior Psychologist, Wolston Correctional Centre, Bachelor of Psychology with Honours; Stephen Kevin Saville, Assistant General Manager, Townsville Correctional Centre and Gavin Wright, Executive Director of Operational Support, Department of Corrective Services8 . [17] There are a number of affidavits by the respondent on the court file which were referred to and relied on at the hearing. It was not however proposed that he give evidence, it seems he did not wish to appear. I do not draw any adverse inference from that. When I indicated it may be desirable in the circumstances that the respondent be heard from arrangements were made for him to give evidence and be cross examined by telephone link. [18] The respondent also relied on the evidence of Dr Olav Nielssen, Bachelor of Medicine, Bachelor Surgery, Master of Criminology, Fellowship of the Royal Australian and New Zealand College of Psychiatrists, Fellowship of the Australian College of Legal Medicine. Other witnesses gave evidence of arrangements to support the respondent if he was released into the community. They will be referred to later. 8 Fraser, Kennedy, Lees and Wright were called and cross examined -- 5 of 20 -- 6 Submissions advanced at the hearing [19] It was submitted for the respondent that the review was “in effect re-hearing” of the proceedings before White J. I do not accept that submission if it means I am engaged in a rehearing on the evidence before White J supplemented by other evidence with a view to determining whether that decision should stand as having been correct: c.f. Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd9 per Mason J at 176. [20] The purpose of an annual review is to see if continued detention is justified in the light of the circumstances at the time of the review; see ss 26 and 27 of the Act. Section 30 speaks of affirming the decision reviewed if the conditions of s 30(2) are satisfied. That includes considering evidence relating to events subsequent to the order of 6 November 2003, see for example the report requirements of ss 11 and 29(1). [21] In this context I adopt what Gummow J said in Fardon v Attorney-General (Qld)10 at [112]: “The phrase ‘is a serious danger’ (in s 30(1)) involves the use of the continuous present to require a decision that, by reason of the attainment of satisfaction by the means and to the degree specified in s 30(3), the prisoner presently is a serious danger to the community in the absence of a Div 3 order. Upon the reaching of that decision, the court may order further subjection to a continuing detention order or release subject to a supervision order (s 30(3)); in making a choice between those orders, the court is to have as ‘the paramount consideration … the need to ensure adequate protection of the community”. [22] So far as the outcome of the review is concerned the applicant submitted that the conclusion that the respondent is a serious danger to the community should be affirmed and he should remain subject to a continuing detention order. [23] The respondent submitted the applicant had not discharged the onus imposed by s 30(2). In that event the detention order would be rescinded and the respondent discharged, s 30(5). [24] It was also submitted for the respondent that if “the evidence justified incarceration” the court had an inherent jurisdiction to release the respondent on the basis of mutual undertakings between him and, presumably, the applicant. A document containing proposed undertakings was handed up. The applicant did not accept that such an approach was open or appropriate. It is convenient to dispose of these issues at this stage. [25] The submission that the court has an inherent power to accept undertakings in the circumstances is based on Grassby v The Queen11 at 16 per Dawson J. The remarks were obiter in the context of considering the powers conferred on a magistrate “by 9 (1976) 135 CLR 616 10 (2004) 78 ALJR 1519 11 (1989) 168 CLR 1 -- 6 of 20 -- 7 necessary implication”. It was held that there was no room for the implication of discretionary power in the particular circumstances. [26] On the view I take of the specific provisions of the Act, notably Part 2 Divisions 3 and 5, ss 27 and 30, do not leave any room for the inherent power contended for to operate. [27] In any event if it was a matter of discretion I would not be prepared to release the respondent on the basis of undertakings. A breach of undertaking would involve enforcement by proceedings for contempt of court. A conditional release order pursuant to s 16 enforceable by proceedings under ss 20-22 of the Act is a far more effective way of dealing with circumstances in which a conditional release order is justified. [28] I turn to another topic. Counsel for the respondent submitted that Dr Moyle’s evidence was “based on falsehoods; it is biased … I didn’t go through all the bias in cross examination but it has that feel about it”. In other words the issue raised was falsehood and actual, not perceived, bias. [29] Dr Moyle provided a report under s 11 of the Act in the proceedings before White J and gave evidence. The evidence Her Honour acted on included his evidence which she accepted. As I have said he also provided a second such a report for this review. [30] At an early meeting of a steering committee convened after White J’s decision and referred to later in these reasons a representative of the Prisoners Legal Service on the respondent’s behalf raised an objection to Dr Moyle’s involvement on the basis he had pre-determined views and was biased. The respondent himself subsequently expressed a similar concern. Dr Moyle continued to be involved in the process and, as I have said provided a report. [31] The fact that a witness has previously expressed a view adverse to the respondent does not justify a finding of bias. [32] Concerns that a witness maybe reluctant to modify or abandon a previously expressed view may nevertheless be fairly raised in cases such as this. The view and its justification can be tested and evaluated in the context of the whole of the evidence. It may prove to be justified, and have to be modified or be rejected. [33] The submissions in the terms in which they were made are serious allegations to be made against any witness, particularly so in the case of a professional witness carrying out the statutory functions imposed by ss 11 and 29 of the Act. They should not be made without justification. Counsel for the defendant was pressed to identify and demonstrate falsehood or bias but failed to do so12 . [34] I reject the submission that Dr Moyle’s evidence should be relied on because of demonstrated bias or falsehood, it is without substance. Dr Moyle’s evidence falls to be evaluated in the context of the whole of the evidence. 12 Transcript of Proceedings, day 2, page 136, line 30 -- 7 of 20 -- 8 The respondent’s background [35] The respondent was born on 16 October 1948. He had no formal education after he was about 12 years old. He has spent most of his life since 1980 in prison. The world to which he must adjust if he is to be safely released into the community is very different from the world he experienced when he was last in it. [36] Turning to the respondent’s life before his first lengthy term of imprisonment, he had a childhood bereft of love, positive socialising models, family or other support. The history which follows is based on the respondent’s accounts given to various people and is a summary of a more expansive and detailed account in the reasons of White J. [37] The respondent’s parents separated when he was very young, he has no knowledge of his mother. He believes that she left while she was pregnant with another son but he knows nothing of any such family should there be any. He was married for about 2 years in 1976 and has two sons with whom he has no contact. [38] The respondent was principally raised by his father who regularly left him in the care of an aunt and uncle on a farm. He described his father as a chronic alcoholic who was away much of the time either working as a labourer and farm hand or serving prison sentences. He felt unwanted, when his aunt and uncle tired of him the respondent was sent to a neighbour where he was obliged to work on the neighbour's farm. [39] The respondent was harshly dealt with by his father. For example the respondent said that he had a puppy which he loved but if he did wrong his father beat or kicked the dog. On a particular occasion when the dog annoyed his father he shot it in front of the respondent who was then about 10 years old. [40] The respondent reported that when he was about 7 he was sexually abused by an older cousin who was intellectually impaired. His complaints were not believed. This went on for about 3 or 4 years until he was old enough to defend himself. [41] His father introduced the respondent to heterosexual sex when he was about 11. His first sexual experience with a same age girl was when he was about 13 or 14. Although he was predominantly attracted to adult women sexually he has engaged in sexual behaviour both in detention as a youth and in prison as an adult with males. [42] The respondent left home when he was about 14 after a fight with his father (the respondent prevailed). His father said that he was now a man and was on his own. He became involved with a motor cycle gang, drifted on and off the streets and kept himself by intermittent labouring jobs and became an habitual and heavy abuser of alcohol and drugs. Criminal History [43] As a juvenile the respondent was sent to boys' homes for stealing offences. Over the years he has appeared in Magistrates and District Courts on approximately 20 occasions with convictions for some 40 offences. He was sentenced to short terms of imprisonment on five or six occasions. The offences were, for the most part, -- 8 of 20 -- 9 property and dishonesty offences and firearms offences. When he was 18 the respondent pleaded guilty to attempting carnally to know a girl under the age of 10 years13 . [44] Turning to his more serious offences, in 1978, the respondent's wife gave birth to a child. Apparently in the course of celebrations he forced a girl of 12 to enter a room with him and threatened her with a rifle unless she consented to sexual activity. He then raped her; according to the sentencing judge “the medical evidence shows that she was severely injured”. [45] It seems that the adults present were too terrified of the respondent to go to the girl’s assistance. When her 15-year-old sister did the respondent asked her for sex. When she refused he struck her twice on her head with the rifle butt. [46] The respondent was arrested that day and was remanded in custody until 16 March 1979 when he was released on bail. He absconded and was arrested in Darwin some 18 months later. [47] The respondent was extradited to Queensland and on 8 October 1979 pleaded guilty to indecently dealing with a girl under the age of 14, rape and unlawful wounding in the Supreme Court in Brisbane in October the following year. He was then 31. He received a head sentence of 13 years. The respondent maintains that he has no memory of these events, in addition to having consumed alcohol he had been drinking "mushroom juice". [48] The first seven years of this sentence were served in Townsville. In May 1988, notwithstanding concerns that he should undergo a comprehensive psychiatric assessment prior to his transfer to release for work, the respondent was granted release and went to live in a hostel in Brisbane. He suffered an anxiety attack, was taken to hospital and returned to secure custody on 26 July. [49] It is not disputed that the respondent was released with very little, if anything, in place for his support and reintegration into the community. He had nowhere to live and no money; his “support network” was people he knew from prison. He reverted to being an abuser of drugs and alcohol and sold of drugs. [50] On 24 September 1988, without informing his parole officer, the respondent hitch- hiked to Townsville. He reported to Townsville Community Corrections a few days later. He made no further contact and a home visit made to his residence on 4 October revealed that he was no longer there. [51] It was on that day that the respondent committed the serious sexual offences for which he has most recently been imprisoned. The respondent said he met a woman drug user because he had heroin for sale. She offered him sex in return for drugs. According to the respondent they both injected heroin and had sexual relations involving oral, anal and vaginal sex. [52] The respondent saw headlights approaching the flat where those activities took place and was fearful of a police raid. He was trying to dispose of evidence when, according to him, the woman ran off with his drugs. He chased after her after 13 Exhibit 4, criminal history -- 9 of 20 -- 10 realising that the people in the vehicle were not the police but friends of his. He caught her and engaged in a prolonged, violent assault. [53] It is reported that the respondent said that he committed these offences to secure a return to custody. In any event he pleaded guilty to sodomy but maintained that the other sexual conduct was consensual; the jury convicted him. In his sentencing remarks the trial judge said the respondent “brutally assaulted” the complainant and “inflicted a series of most degrading acts on her”. [54] Justice White noted, in her reasons of 6 November 2003, in respect of this incident: “On the respondent’s account the only assault related to the alleged that as recently as his interview in October this year with Professor Ogloff, the respondent maintained that beating the complainant was ‘right’ because she had tried to steal from him notwithstanding his convoluted attempt, when giving evidence in his hearing, to have the court accept that he was telling Professor Ogloff how he felt at the time of the offence.” [55] The respondent was sentenced to a head sentence of 14 years which expired on about 30 June 2003. That led to the Attorney-General initiating proceedings under the Act and ultimately to the order of 6 November 2003. [56] For completion I note that on 22 August 1989 the respondent was convicted of stealing between 1 September and 31 October 1986 whilst in custody. White J’s order of 6 November 2003 and subsequent events [57] I have dealt with a review pursuant to s 29 in [20-23]. In considering the “continuous present” in my view White J’s conclusions founding the order of 6 November 2003 form a convenient point of departure. There was no appeal from the order and no argument advanced to its foundation in the proceedings before me. [58] The conclusions expressed in the judgment of 6 November 2003 are as follows: “[98] The very detailed reports and evidence of Dr Moyle and Professor Ogloff together with the reports and evidence from Professor James, Dr Boettcher and the psychologists within the Corrective Services system are cogent and acceptable evidence and, together with the respondent's antecedents and criminal history, establish to the requisite standard that the respondent is a serious danger to the community in that there is an unacceptable risk that he will commit a serious sexual offence if released from custody. The question is whether that risk can be managed by a supervision order. I am conscious of Professor Ogloff's opinion that it is not until the respondent is tested in the context of a suitable release plan that it can be known if he can be released safely. But the consequences of failure are very serious. I accept that he has had 16 escorted leaves of absence in recent times without serious incident but that is a minor first step. I am not persuaded that his recent expressions of empathy with and apology to victims are deep-founded or come from any understanding of what it is to be the victim of his violence. -- 10 of 20 -- 11 [99] The accommodation and support proposals from lay people and professional counsellors are not unrealistic. Corrective Services has not indicated whether that level of `intensive supervision with a highly qualified community corrections officer with a focus on the provision of after-care and long term supervision' as specified by Professor Ogloff is available in Townsville or at all. [100] What is of major concern is the failure by the respondent to participate in or to participate to completion in a course or courses of therapy which address his ‘inner world’ and give him risk minimisation strategies whether related to his violent sexual offending or alcohol and drug relapse prevention. Such skills are also necessary for his own well-being as has been stressed particularly by Dr Moyle and Professor James. That this has not occurred in the past is, largely, because of the respondent's determination to maintain some level of independence from the authorities which he does by being defiant. For some ten years there have been efforts made to assist the respondent towards reintegration into the community. Contrary to the respondent's assertions, the system has not failed him this time, whatever serious criticisms might be made of his last release. He has, for the most part, chosen not to take some responsibility for his own rehabilitation and engage in appropriate treatment. His work ethic and skills are a positive note for reintegration but unless he can address the other concerns fundamental to his personality he constitutes a serious danger to the community which cannot be addressed at this time by a supervision order. [101] There is a great deal of guidance to be found in the most recent reports and evidence. Professor James spoke of `a sense of increasing hope ... that appropriate forms of psychotherapy in particular might prove efficacious.' … The goal must be one of rehabilitation if the respondent is to remain detained and, with the respondent's co- operation, appropriate treatment together with staged reintegration as recommended by Dr Moyle may lead to a positive outcome when this order is reviewed. But until that occurs, the respondent must be detained so that the community may be adequately protected.” What has happened since the order of 6 November [59] Following the decision, the Executive Director, of Operational Support Services for the Department of Corrective Services (Gavin Wright) convened a steering committee including to: “… consider Mr Fardon’s unique circumstances and the obligations on the Department to provide … opportunities to address his criminogenic risk in accordance with the court’s expectations.” The respondent’s interests were advocated in the committee by the Prisoners’ Legal Service as well as by him. -- 11 of 20 -- 12 [60] The following is a chronological outline of salient events following the convening of the committee; it is not intended to be comprehensive or exhaustive. 9 December 2003 Steering committee convened. 12 December 2003 Letter to Dr Moyle requesting advice. 13 February 2004 Dr Moyle responds. 1 April 2004 Wright meets with Prisoners’ Legal Service to discuss Draft Plan explain rationale and seek co-operation to explain to respondent. PLS raises objection to Dr Moyle based on a view that he provided evidence in the form of a psychiatric assessment to the court not beneficial to Fardon and that he was biased. 16 April 2004 Meeting to consider a draft individual management plan for Mr Fardon. It was attended by: • The respondent; • Prisoners Legal Service by video link; • Mr Wright and other Townsville Correctional Centre Staff including the senior psychologist. The respondent agreed to sign off on modified draft plan and did so. Respondent signs off on modified plan 14 . 23 April 2004 Individual management plan provided to PLS and respondent15 . 27 April 2004 Mr Darmody 1 hour sessions once a week with respondent. 29 April 2004 Mr Fraser meets senior staff to discuss operational aspects, including counselling by Mr Fraser, treatment plan for respondent. 12 May 2004 – Mr Fraser has weekly counselling sessions with the 10 October 2004 respondent who he had previously counselled in 2000-2001. 24 June 2004 Mr Wright requests Dr Moyle and Prof James to examine the respondent and report in compliance with s 11(2) of the Act. 7 July 2004 Dr Moyle assesses respondent. 14 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-4) 15 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-2) -- 12 of 20 -- 13 16 July 2004 Progress report16 on respondent’s progress on management plan by senior psychologist at Townsville Correctional Centre, Marion Lees. Ms Lees conducts 5 hour interview with respondent17 . 28 July 2004 Dr Moyle’s report18 . 28 July 2004 Ms Lees first progress report in respect of respondent19 . 9 August 2004 Prof James assesses respondent. 20 August 2004 Prof James’ report20 . 23 September 2004 Subsequent report. 23 September 2004 First draft of management plan revised in the light of review21 . 23 September 2004 Wright meets with respondent. The respondent was unco- operative and refused to discuss anything to do with community risk arising from his potential to reoffend. Further actions were identified22 . 27 September 2004 Steering Committee decides respondent should be moved to Wolston Correctional Centre to be given greater opportunity to address sexual re-offending then can be provided in Townsville23 . 29 September 2004 Second draft Management Plan24 provided to Manager, Townsville Correctional Centre for discussion with respondent. 6 October 2004 Stephen Kevin Saville, Assistant General Manager, Townsville Correctional Centre meets with respondent to discuss the draft management plan. Respondent did not wish to transfer to Wolston Correctional Centre and would not sign without his lawyer’s advice. [61] The respondent has now been transferred to Wolston Correctional Centre. This has removed him from his external support network in Townsville. [62] In his affidavit25 the respondent deposes to having met two psychologists and being due to commence weekly counselling sessions based on a treatment objective list he 16 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-9) 17 Doc 95 - Affidavit of Marion Lees sworn 22 October 2004 (ML-4, ML-5 and ML-6) 18 Doc 96- Affidavit of Gavin Wright sworn 1 October 2004 (GW-7) 19 Doc 95 - Affidavit of Marion Lees sworn 22 October 2004 (ML-3) 20 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-8) 21 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-11) 22 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-12) 23 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-13) 24 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-14) -- 13 of 20 -- 14 had personally developed. The evidence does not however deal with what has been done since the respondent was transferred to Walcol to take advantage of the opportunities there. Some relevant findings and the evidence [63] By way of recapitulation the respondent is now 57 years old. He has been in prison for most of the last 25 years. [64] By 3 November 2003 the respondent was living relatively independently in the prison at Townsville as one of a group of prisoners in self contained accommodation; a village. He was responsible for his own cooking and washing. He worked in a trusted position in the prison tailor shop. The respondent is interested in gardening and has acquired horticultural qualifications. [65] I accept that the respondent does not want to die in prison, appears motivated to achieve release into the community and is aware that he needs help if he is to fit back into the community. [66] It is difficult to determine the extent to which his attitude is an expression of self interest and how much of it reflects genuine insight and understanding of his past conduct and its consequences for others. It may be in the applicant’s interest to conceal his true attitudes and feelings, depending on what they are. There is occasion to doubt how robust his resolve, even if it is genuine, will be when tested. [67] The respondent is highly institutionalised. From that perspective, alone he is ill equipped to be released into the community other than by a successful graduated program through defined stages in which he is adequately supported at each stage. The respondent had had a number of accompanied releases on licence into the community in Townsville where he had developed or was developing a support network but those seem to have stopped. [68] There was evidence that drugs and alcohol were available in prison albeit that they are prohibited. The respondent says, he has not consumed alcohol while in prison, he has tested drug free. He gave up cigarettes some years ago, the evidence suggests that this is the most difficult dependency to conquer. [69] The evidence does not establish that the respondent has a psychiatric illness or psychosis. Dr Moyle suspects that he has paraphilia but accepts that he does not exhibit attitudes or behaviour satisfying the definition of that criteria to the extent of justifying a diagnosis of that condition. [70] The respondent’s substance abuse, social deviance and criminal record, his behaviour and attitude shaped by his life experience and adapted to survive a prison environment manifests significant anti social personality disorders which may adversely impact on others. [71] When he is released into the community the respondent will be subjected to opportunities and stresses which he has not been exposed to while in prison and which may trigger aberrant behaviour. 25 Doc 108 - Affidavit of Robert John Fardon sworn 23 December 2004 (paragraph 26) -- 14 of 20 -- 15 [72] There remains a significant risk that the respondent will revert to substance abuse and offending behaviour if released into the community without adequate support. Stress will arise because of his need to discard coping skills acquired in prison and to acquire new ones when he is released into the community. [73] Failure to deal with stress appears to have contributed to, if not caused, the respondent’s conduct in 1988 when he was released from his first long term of imprisonment. On a minor scale, when the respondent was recently transferred to Wacol, he did not consent to the transfer, he became stressed and anxious and agreed to take medication to address his anxiety levels26 . [74] The respondent’s history demonstrates that a reversion to the previous patterns of offending behaviour may have severe consequences for members of the community. [75] I turn now to aspects of the evidence. Professor James was “impressed with what appeared to be the respondent’s considerably greater ability to direct his attention to his inner self” and considered he was developing a basis for a “better appreciation of the consequences for other people of his actions”. He was “probably for the first time in his life” becoming to experience some sense of empathy and his communication had developed more validity27 . [76] Professor James’ viewed the changes as “very encouraging. He went on however to emphasise that “at this time” (20 August 2004) they are “not much more than embryonic”28 . [77] Professor James adhered to the view expressed in his report of 2 June 200329 that Mr Fardon would commit other offences, including offences of a sexual nature “if he did not continue to function in a structured and secure environment and that the changes needed to be considerably extended and consolidated before the risk of re- offending could be regarded as lessened with any degree of confidence”30 . [78] The Professor also expressed the view31 the respondent has a limited ability to change, acknowledged that there had been positive change and thought supervised release would be “absolutely essential” but that the “content and degree of necessary support and supervision was debatable”32 . I accept these assessments which are supported by other evidence. [79] Dr Moyle concluded that the respondent:- “… remains at high risk of re-offending … has started to address some factors that will lower that risk … . He has yet to address key issues … that make him a risk (his sexual violence potential and paraphilias, possibly his sexual self regulation, compliance with those areas of remediation, his attitude to sexually violent offending and victims, his denial and minimization of offending and his 26 Doc 108 - Affidavit of Robert John Fardon sworn 23 December 2004 (paragraphs 7-10) 27 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-8) 28 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-8) 29 Doc 55 – Affidavit of Professor Basil James sworn 29 July 2003 (A) 30 Doc 51 - Affidavit of Professor Basil James sworn 29 July 2003 (A) 31 Transcript of Proceedings, day 1, page 10, line 40 32 Transcript of Proceedings, day 1, page 12, line 30 -- 15 of 20 -- 16 negative attitude towards intervention). Until the latter are adequately addressed he remains at high risk of reoffending.” [80] Dr Moyle recommended a management plan which provides for a series of steps “eventually leading to him entering the community confident that he could stay there comfortably”. The plan would involve the appointment of an experienced supervising correctional officer and would provide for rewards and sanction. The latter “should be determined by a court” and put in place by the supervising community corrections officer with the authority of a court order. He had little disagreement with the strategies offered by others to achieve this subject to provisos identified in his report. [81] Dr Moyle’s33 considers there is a high risk of re-offending based on actuarial considerations including HCR-20. [82] As I have said Dr Moyle accepts34 the criteria for paraphilia phobia are not satisfied in the respondent’s case. His opinion has, to that extent, to be modified. His views otherwise were open to him, are cogent and supported by other evidence. [83] In Dr Nielssen’s opinion scientific knowledge does not enable psychiatrists or other behavioural scientists to predict an individual’s behaviour with “a high enough degree of probability to meet the standard of evidence required by the Act”. [84] Dr Nielsson dealt with the validity and reliability of current risk assessment techniques and scales. The scales were limited and rather inflexible; he concluded that they were unable to predict the risk of re-offending to a high enough degree of probability to warrant preventative detention in the case of an individual. [85] Referring to the order of 6 November 2003 Dr Nielsson said it was made “on the basis of reports by two court appointed psychiatrists who had provided what was considered to be “acceptable, cogent evidence” and “to a high degree of probability” that the evidence is of sufficient weight to justify the decision. It is, I think, more accurate to say the decision was based on the whole of the evidence (as the Act required ss 13 and 30(2)). The reports of the two psychiatrists were no doubt an important component of that evaluation. [86] I note that Dr Nielsson acknowledged the importance of the ideation of someone in the respondent’s position; for example whether the only way for such a person to get excited sexually was to cause pain35 . He referred to the difficulties of ascertaining that other than in terms of revealed attitudes and behaviour. He also understood the caution and resistance of prisoners to reveal those processes 36 . [87] Dr Nielsson noted that the respondent was identified as having a persisting level of risk by reference to actuarial studies. His “clinical impression” however was that in his current frame of mind the respondent would not “deliberately seek to re-offend and that his propensity to commit further serious offences had declined over time to a relatively low level”. 33 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-7) 34 Transcript of Proceedings, day 1, page 21, line 9 35 Transcript of Proceedings, day 1, page 35, line 44 36 Transcript of Proceedings, day 1, page 35, line 53 -- 16 of 20 -- 17 [88] The reasons for this included that the respondent was getting older. It may be accepted that there is some apparent support for this in statistical terms. The limitations of such an approach are that it cannot predict whether a particular individual would or would not offend or the circumstances in which an offending individual might do so. The respondent’s history and traits such as vulnerability to stress have to be brought into account as does the potential of serious consequences to others if he reverts to offending behaviour. [89] Having said that criminal offences were usually the result of an interaction between a person’s tendencies and the circumstances in which they find themselves Dr Nielsson went on:- “I believe (the respondent’s) longer term risk of re-offending is closely linked to the quality of preparation he receives for life in the community and the level of support he receives after his release. Hence the management of any risk would require adequate psychological and practical preparation and a higher degree of support, particularly in the first few months”. I accept that conclusion. [90] The senior psychologist at the Townsville Correctional Centre a member of the Steering Committee previously referred to (Marion Lees) swore an affidavit, gave evidence by telephone and was cross-examined. She holds a Bachelor of Psychology with Honours, conferred by the James Cook University and has worked for the Department of Corrective Services for approximately six years. [91] As part of the agreed draft plan signed off on 16 April 200437 Ms Lees was to arrange and oversee “anxiety/coping counselling” for the respondent with a social worker, Russell Fraser and with Graham Kennedy in respect of drug and alcohol relapse prevention counselling focussing on issues relevant to a non-prison environment. [92] On 16 July 2004 Ms Lees had a five hour interview with the respondent and on 28 July prepared a progress report38 . The report contained the following conclusion and recommendations:- “(the respondent’s) behaviour profile has been generally stable and positive. He has participated in treatment with Mr Fraser and Mr Kennedy since April 2004. He has made progress towards intervention targets and he has demonstrated increased insight and self management. He has a positive pro social support network. His major risk factors are stress which is likely to occur in situations where he was unsure of what action to take or if he felt trapped and powerless to deal with or avoid the situation. This would be increased if he were also in an environment which is unfamiliar to him and he has no ‘safe place’ to retreat to. Another risk factor would be relapse to substance abuse. 37 Doc 95 - Affidavit of Marion Lees sworn 22 October 2004 (ML-2) 38 Doc 95 - Affidavit of Marion Lees sworn 22 October 2004 (ML-3) -- 17 of 20 -- 18 Protective factors include his ongoing commitment to treatment, his pro social support network, his engagement in attempting to form appropriate relationships with selected others, the insights he has acquired and his demonstration of behaviour control and self management. At this stage of the management a thorough risk assessment is not appropriate until his behaviours can be challenged in unfamiliar environments and situations. It should be beneficial to continue counselling with Mr Fraser and Mr Kennedy as he has made progress through their interventions.” [93] I note that the respondent 39 deposes that about 28 July 2004 he saw a report by Ms Lees. The next day she told him that she’d been ordered to change it and it was reduced in volume. This was not canvassed in cross examination of Ms Lees or in address as a consequence I have not taken it into account as diminishing the weight of Ms Lees’ views. [94] Mr Fraser, a self employed counsellor in private practice, holds Bachelor of Social Work, a Graduate Diploma in Adult Education, Graduate Diploma in Research Methods. He swore an affidavit, was called and cross examined. He stated that the respondent had actively participated in his counselling sessions, raising concerns and issues and talking them through. He detected “a growing spirituality, a sense that the respondent felt more at peace with himself within a spiritual sense”. [95] Mr Fraser went on to express the view that the respondent is unlikely to commit further violent offences provided he has appropriate social and professional support in the community and abstained from substance abuse. He supported a leave of absence program within a treatment plan as an important step in assessing the future needs of the respondent in transition from a secure environment to general community living. [96] Mr Fraser considers the respondent will benefit from (need) a professional support network in the community including people skilled in understanding the effects of trauma, disadvantage and institutionalisation with access to professional supervision from psychologists or understanding of the forensic aspects of psychology and psychiatry and will need therapeutic support, intensive at first. [97] Mr Kennedy, a retired Drug and Alcohol Counsellor previously employed by the Department of Corrective Services at the Townsville Correctional Centre and Lotus Glen Correctional Centre, holds a Certificate in Addiction Studies and has 20 years experience in counselling for addictions and other aspects of human behaviour. He has had dealings with the respondent from 1991. He spoke of his determination, intelligence and of his endeavours to improve himself in jail. He also spoke of the respondent when he first had contact with him as “an aggressive little prisoner. … basically controlling his unit (in the prison).” As he progressed through the system he changed a lot “he’s not the prisoner that I met in 1991”. [98] Mr Kennedy acknowledged that the respondent would need to be supported if released into the community. He would “suffer panic attacks when he gets out, 39 Doc 108 - Affidavit of Robert John Fardon sworn 21 December 2004 (Paragraph 25) -- 18 of 20 -- 19 because that’s how he is.” He would then need to have someone to turn to but Mr Kennedy expressed confidence that the respondent would survive outside with support. [99] The respondent has benefited from his dealings with Messrs Fraser and Kennedy. They have made an important contribution to his progress. Although generally supportive of the respondent, their evidence does not support other than pursuing a graduated and supported release program. [100] Two witnesses who were prepared to provide support for the respondent in the event of his being released into the community gave evidence. This evidence was related to the release on mutual undertakings proposal I referred to earlier. [101] In brief the evidence of those witnesses canvassed that the respondent reside on a fairly isolated property about 40 minutes drive from the nearest town. One of the witnesses owned the property and would be there for most of the week but not on weekends. It was anticipated that the respondent would engage in gardening and other outdoor activities. [102] The witness would interact and provide support to the respondent by being “there to sort of be a friend to him and work with him and that sort of thing.” The duration of the arrangement was conditional among other things, on the respondent not proving to be “a real difficulty”. [103] The second witness was experienced in the re-integration of long term prisoners into the community and supporting them there. That witness would support the respondent by counselling, and educating him in how to survive in the world. Other support from, for example, psychiatrists and psychologists could be made available. [104] While these witnesses were prepared to provide their support and services to the respondent free of charge it is not clear how any additional support or services to the respondent identified as necessary would be funded. Nor is it clear how progress would be monitored and evaluated. [105] There is every reason to accept these witnesses as committed to supporting the respondent. What is proposed so far however falls far short of what is indicated by the evidence as necessary to prepare the respondent for release into the community and give him the support necessary to maintain him there and at the same time appropriately safeguard the community. [106] It is unfortunate that the terms of these proposals put forward in the respondent’s case for his release into the community and how they might properly be implemented were not canvassed with Professor James, Dr Moyle, Dr Nielsson and other witnesses. [107] In her judgment of 6 November 2003 at [100] White J identified as a matter of major concern the respondent’s failure to participate in or complete a course or courses of therapy addressing his “inner world” and give him risk minimisation strategies relating to his violent sexual offending or alcohol and drug relapse prevention. Her Honour found that this had not occurred largely because of the respondent’s determination to maintain independence from the authorities by being defiant. -- 19 of 20 -- 20 [108] The minutes of a meeting of 22 September 2004 40 record the respondent continued to resist endeavours to assess and target his sexual and violent offending behaviour. The transfer to Wolston Correctional Centre was designed to give access to resources in this area which were not available in Townsville. As I have indicated there is no evidence as to what has been done since he transferred to the centre. [109] It has been suggested that the respondent keep a diary detailing his perception of his demeanour and interaction with staff and other prisoners to be reviewed on a weekly basis by the General Manager and senior psychologist in an analysis of the entries to challenge any distorted cognition41 . [110] The respondent has strongly rejected this as a threat to his safety and perhaps on other grounds, he may not wish to have his thought processes revealed or have them challenged. [111] The respondent’s concerns about his safety may be justified. Nevertheless, failure to effectively address these legitimate concerns will continue to be an obstacle to his attaining his goal of release into the community. The issue needs to be addressed with each party acknowledging the position of the other on the issue and working to an outcome. [112] It appears that a security reclassification following the order or 6 November 2003 may have an inhibiting effect on aspects of a program towards gradual supervised release. The classification and its consequences were not canvassed in any detail in the evidence. It would be regrettable if a reclassification inhibited the respondent’s progress unless there is strong justification for it. Conclusions [113] A graduated or staged supported release into the community remains a viable option for the respondent. [114] The efforts of the Department and its officers since 6 November 2003 should be recognised and acknowledge not least by the respondent. The respondent should have continued support and recognition for his positive efforts which have been significant. His efforts have been acknowledged in the various reports in evidence, by the program put in place to support him and by various witnesses. [115] The stage may be reached that the respondent’s detention is no longer justified because a suitable supervisions order may allow his release into the community. That is not however the case at present. I am satisfied the respondent is a serious risk to the community; there is an unacceptable risk he will commit a serious sexual offence if he is released. [116] I therefore order the respondent continue to be the subject of a continuing detention order. 40 Doc 96 - Affidavit of Gavin Wright sworn 1 October 2004 (GW-12) 41 Doc 95 - Affidavit of Marion Lees sworn 22 October 2004 (ML-1); see also [79] and [86] -- 20 of 20 --