Attorney-General v Fardon [2003] QSC 379
SUPREME COURT OF QUEENSLAND
CITATION: Attorney-General v Fardon [2003] QSC 379
PARTIES: RODNEY JON WELFORD, ATTORNEY-GENERAL
FOR THE STATE OF QUEENSLAND
(applicant)
v
ROBERT JOHN FARDON
(respondent)
FILE NO/S: SC No 5346 of 2003
DIVISION: Trial Division
DELIVERED ON: 6 November 2003
DELIVERED AT: Brisbane
HEARING DATE: 27, 28, 29, 30 October 2003
JUDGE: White J
ORDER: Robert John Fardon be detained in custody for an
indefinite term for control, care and treatment
CATCHWORDS: STATUTES – ACTS OF PARLIAMENT –
INTERPRETATION – STATUTORY POWERS AND
DUTIES – EXERCISE – GENERAL MATTERS – Where
respondent convicted of rape and sodomy – where respondent
“serious sexual offender” for purposes of Dangerous
Prisoners (Sexual Offenders) Act 2003 (Qld) – where
respondent’s sentence expired – where Attorney-General
made application to have respondent detained indefinitely –
whether respondent is a “serious danger to the community” –
whether court satisfied of this by acceptable, cogent evidence
and to a high degree of probability
EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS,
AND WEIGHT AND SUFFICIENCY OF EVIDENCE –
GENERALLY – SUFFICIENCY – where applicant required
to establish “to a high degree of probability” that respondent
is a serious danger to the community – whether applicant
satisfied requisite standard of proof
EVIDENCE – ADMISSIBILITY AND RELEVANCY –
FACTS RELEVANT TO FACTS IN ISSUE – IN
GENERAL – where issue is whether there is an
“unacceptable risk” that respondent will commit a serious
sexual offence – consideration of material relevant to fact in
issue
Criminal Law Amendment Act 1945 (Qld), s 18
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 5,
s 8, s 11, s 13, s 14
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Penalties and Sentences Act 1992 (Qld), Part 10
Chester v The Queen (1988) 165 CLR 611, referred to
Coco v The Queen (1993-1994) 179 CLR 427, referred to
McGarry v The Queen (2001) 207 CLR 121, referred to
Minister for Immigration & Multi Cultural & Indigenous
Affairs v Applicant VFAD [2002] FCAFC 390, referred to
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992)
110 ALR 449, considered
R v Secretary of State; Ex parte Khawaja [1984] AC 74,
considered
Re Bolton & Anor; Ex parte Bean (1987) 162 CLR 514,
referred to
Trobridge v Hardy (1955) 94 CLR 147, referred to
COUNSEL: R V Hanson QC, with R W Campbell and M Maloney, for
the applicant
S R Southwood QC, with P D Keyzer, for the respondent
SOLICITORS: Crown Solicitor for the applicant
Prisoners’ Legal Service for the respondent
[1] The Attorney-General has applied to the court for an order pursuant to Division 3 of
the Dangerous Prisoners (Sexual Offenders) Act 2003 that the respondent, Robert
John Fardon, be detained in custody for an indefinite term for control, care and
treatment.
[2] The respondent was convicted of rape, sodomy and assault occasioning bodily harm
on 30 June 1989 at Townsville and sentenced to 14 years imprisonment. That
sentence expired on or about 30 June 2003. The Dangerous Prisoners (Sexual
Offenders) Act 2003 (“the Act”) came into force on 6 June 2003. The Attorney-
General applied to the court for an interim detention order in respect of the
respondent on 17 June 2003 pursuant to s 8 of the Act. An order was made by Muir J
on 27 June 2003 that the respondent be detained until 4 August or earlier order. On
31 July Philippides J made a further interim detention order to 3 October and on 2
October Atkinson J made a further interim detention order to remain in force until the
determination of an application under Division 3 of the Act.
[3] The respondent challenged the orders made by the primary judge on the principal
ground that the Act was beyond the legislative competence of the Queensland
Parliament in that it infringed Chapter III of the Australian Constitution by vesting in
the Supreme Court of Queensland functions incompatible with the court’s role as a
repository of judicial power derived from the reasoning of the High Court in Kable v
The Director of Public Prosecution (NSW) (1996) 189 CLR 51 and developed in
subsequent cases.
[4] The Court of Appeal (de Jersey CJ and Williams JA; McMurdo P dissenting) held the
legislation constitutionally valid. Mr Southwood QC for the respondent informed the
court on the present hearing that an application had been filed for special leave to
appeal to the High Court and it was proposed to seek an expedited hearing.
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[5] The application has, accordingly, proceeded on the basis that the Act is a valid
enactment of the Queensland Parliament.
The scheme of the Act
[6] The objects of the Act are
“(a) to provide for the continued detention in custody or supervised
release of a particular class of prisoner to ensure adequate protection
of the community; and
(b) to provide continuing control, care or treatment of a particular
class of prisoner to facilitate their rehabilitation”, s 3.
The Second Reading speech by the Attorney-General and Minister for Justice
explained that the new legislation was, in effect, to extend post-sentence preventative
detention of sex offenders who pose a serious danger to the community and who did
not fall within the provisions of Part 10 of the Penalties and Sentences Act 1992 and s
18 of the Criminal Law Amendment Act 1945 concerning indefinite detention, see
Queensland Parliamentary Debates 3 June 2003 p 2484. Assessments made of the
respondent have concluded that he does not fall within the parameters of either of
those enactments.
[7] A person the subject of an order made under the Act may not avail himself of the
provisions of the Bail Act 1980, s 4.
[8] The Attorney-General may apply to this court for an order under s 8 – an interim
detention order – and an order under s 13 which is in Division 3 – a continuing
detention order or a supervision order – in relation to a prisoner. A “prisoner” is one
who is 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, whether the person was
sentenced to the term or period of imprisonment before or after the
commencement of this section”, s 5(6).
[9] A “serious sexual offence” means an offence of a sexual nature whether committed in
Queensland or outside Queensland involving violence or an offence of a sexual
nature against children. “Violence” includes intimidation and threats.
[10] The language of s 5(6) is predicated upon an application being made while the
prisoner “is serving” a period of imprisonment. The respondent’s sentence has
expired. Section 8(4) provides that if the court sets a date for the hearing of a
Division 3 order but the prisoner is released from custody before the application is
finally decided, for all purposes in relation to deciding the application, the Act
continues to apply as if the person were a prisoner. The person the subject of the
application remains a prisoner for all purposes if ordered to remain in custody after
his period of imprisonment ends, s 8(3).
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[11] On 30 June 1989 the respondent was found guilty of rape by a jury in the Supreme
Court at Townsville. He had pleaded guilty to sodomy and assault occasioning
bodily harm. The circumstances of the offences, to which reference will be made
below, made the rape and the sodomy, for which sentences of 14 years were imposed,
serious sexual offences within the meaning of the Act. It may be noted that on 8
October 1980 the respondent pleaded guilty to raping a 12 year old girl, indecently
dealing with her and unlawfully wounding her 15 year old sister. He was sentenced
to 13 years imprisonment for the rape and lesser concurrent terms of imprisonment
for the other offences. The respondent was released on parole after serving 8 years of
that sentence and within 20 days had committed the offences for which he was
sentenced on 30 June 1989. The respondent, who was born on 6 October 1948, has
an extensive criminal history, principally for stealing, disorderly behaviour and
weapons offences. Of some relevance to this application is his plea of guilty in 1967
in NSW to attempted carnal knowledge of a girl under the age of 10 years. He was
placed on a good behaviour bond.
[12] Returning to the Act, after an application is filed for relevant orders, a return date is
set to decide whether the court is satisfied that there are reasonable grounds for
believing the prisoner is a serious danger to the community in the absence of a
Division 3 order. If the court is so satisfied, it must set a date for a Division 3 hearing
and may order that the prisoner undergo examination by two psychiatrists appointed
by the court who are to prepare independent reports and/or order that the prisoner be
detained in custody for a specified period, in effect, pending the final decision of the
application for a Division 3 order. As has been mentioned, interim detention orders
have been made concerning the respondent.
[13] The court ordered reports from Dr R Moyle and Dr G Larder both of whom satisfy
the requirement of the Act that they have registration as specialist psychiatrists. The
Act requires that each report indicate “the psychiatrist’s assessment of the level of
risk that the prisoner will commit another serious sexual offence” if released from
custody or released without a supervision order being made, s 11(2). There is a
recognised body of research and scholarly writing in the field of psychiatry
concerning the risk of recidivism including of sexual offences. Although Dr Larder is
a well-qualified psychiatrist it became clear that he did not have the necessary
expertise in forensic psychiatry to enable him to assess the level of risk of re-
offending by the respondent and thus be able to assist the court in deciding whether
the respondent constitutes an unacceptable risk to the high standard required by the
Act.
[14] Two other psychiatrists, Professor Basil James and Dr Brian Boettcher, were called
by the Attorney-General. Both had had previous dealings with the respondent at the
request of Queensland Corrective Services. Professor James Ogloff, Professor of
Clinical Forensic Psychology at Monash University in Victoria gave evidence in the
respondent’s case. A number of psychologists who had contact with the respondent
while serving his term of imprisonment also gave evidence by affidavit and some
were cross-examined.
[15] The governing provision for this application is s 13. It applies if “the court is
satisfied the prisoner is a serious danger to the community in the absence of a
division 3 order”. By ss (2)
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“A prisoner is a serious danger to the community as mentioned in
subsection (1) 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.”
[16] Sub-section 4 sets out the matters to which the court must have regard when deciding
whether a prisoner is a serious danger to the community. They are
the reports prepared by the psychiatrists under s 11 and the extent to which the
prisoner cooperated in the examinations by the psychiatrists;
any other medical, psychiatric, psychological or other assessment relating to the
prisoner;
information indicating whether or not there is a propensity on the part of the
prisoner to commit serious sexual offences in the future;
whether or not there is any pattern of offending behaviour on the part of the
prisoner;
efforts by the prisoner to address the cause or causes of the prisoner’s offending
behaviour including whether the prisoner participated in rehabilitation programs;
whether or not the prisoner’s participation in rehabilitation programs has had a
positive effect on the prisoner;
the prisoner’s antecedents and criminal history;
the risk that the prisoner will commit another serious sexual offence if released
into the community;
the need to protect members of the community from that risk;
any other relevant matter.
[17] The court may decide that it is satisfied that the prisoner is a serious danger to the
community only if it is satisfied by “acceptable, cogent evidence” and “to a high
degree of probability” that the evidence is of sufficient weight to justify the decision.
This is in contrast to interim orders under s 8 where the court need only be satisfied
that there are “reasonable grounds for believing the prisoner is a serious danger to the
community”. In deciding whether to make an order, be it a continuing detention
order or a supervision order, s 13(6) provides that “the paramount consideration is to
be the need to ensure adequate protection of the community.” The onus is on the
Attorney-General to prove that a prisoner is a serious danger to the community, s
13(7).
[18] If the court is so satisfied the court may order that the prisoner be detained in custody
for an indefinite term for control, care or treatment, s 13(5)(a), or may order that the
prisoner be released from custody subject to the conditions it considers appropriate
that are stated in a supervision order, s 13(5)(b).
[19] If the court makes a continuing detention order it takes effect on the order being made
or at the end of the prisoner’s period of imprisonment whichever is the later and
remains in force until rescinded by the order of the court. Such a person remains a
prisoner, s 14.
[20] There are detailed provisions relating to conditions for supervised release,
amendment of supervision orders and the contravention of a supervision order which
it is unnecessary to discuss here. They are, in general terms, very similar to parole
conditions or probation orders.
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[21] If the court makes a continuing detention order it must review the order at the end of
one year after the order first has effect and afterwards at intervals of not more than
one year after the last review while the prisoner continues to be subject to the order, s
27(1). Generally speaking, that procedure follows the procedure for an application
for an order under s 13.
[22] An appeal from a decision made under the Act to the Court of Appeal is by way of
rehearing, s 43(1).
The standard of proof
[23] The Act requires the court hearing an application for a Division 3 order to be satisfied
on acceptable and cogent evidence ‘to a high degree of probability’ that the evidence
is of sufficient weight to justify the decision. This standard must be understood
against the settled fundamental legal principle that the right to personal liberty is ‘the
most elementary and important of all common law rights’ per Fullagar J in Trobridge
v Hardy (1955) 94 CLR 147 at 152 and observations to similar effect in Re Bolton &
Anor; Ex parte Bean (1987) 162 CLR 514 per Brennan J at 523, Chester v The
Queen (1988) 165 CLR 611 at 618 and McGarry v The Queen (2001) 207 CLR 121
particularly per Kirby J at 141. It is well-recognised that an intention to abrogate an
entitlement to liberty which is the respondent’s on the expiration of his sentence,
must be made ‘by unmistakable and unambiguous language’ per Mason CJ, Brennan,
Gaudron and McHugh JJ in Coco v The Queen (1993-1994) 179 CLR 427 at 437.
See also Minister for Immigration & Multicultural & Indigenous Affairs v Applicant
VFAD [2002] FCAFC 390 at paras 104-114.
[24] In this Act the legislature has manifested its intention by unmistakable language that
in certain specified circumstances the liberty of the individual may be curtailed. It
has further provided that the court, in weighing the evidence and deciding whether to
make an order, must have the protection of the community as the paramount
consideration. As Brennan J said in Re Bolton at 523:
‘… the courts acknowledge that the balance between the public
interest and individual freedom is struck not by the courts but by the
representatives of the people in Parliament.’
[25] The explanation in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110
ALR 449 at 450 of the well-known test in Briginshaw v Briginshaw (1938) 60 CLR
336 at 362 of the proper approach to the strength of evidence necessary to establish a
fact or facts on the balance of probabilities may be kept in mind. The dictum of Lord
Scarman in R v Secretary of State; Ex parte Khawaja [1984] AC 74 at 113-4 is
apposite: “The flexibility of the civil standard of proof suffices to ensure that the
court will require the high degree of probability which is appropriate to what is at
stake.” The serious nature of the enquiry is underscored by the use of the expression
‘high degree of probability’ by the legislature.
The presence of the respondent
[26] Arrangements were in place for the respondent to be present by video-link at the
Townsville Correctional Centre where he is imprisoned. Mr Southwood informed the
court at the commencement of the hearing that his client did not wish to avail himself
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of that arrangement then but that he might do so later. In the event, he did not, but
gave evidence as the last witness in the proceedings by video-link.
Some issues
[27] Mr Hanson QC for the Attorney-General expressly did not seek a supervision order in
the alternative to a continuing detention order. He did concede that the application
was not strictly an inter partes proceeding and that the court could make a
supervision order even if neither the Attorney-General nor a prisoner sought it.
Although Mr Southwood took the position that since only a continuing detention
order was sought there was no scope for a supervision order he, too, agreed that one
could be made, if in the court’s view, it was appropriate to do so.
[28] The focus of much of the oral hearing was on exploring statements made by the
respondent that he would kill when released (made before the Act was contemplated)
to return to what he regarded as the safe environment of prison; his good conduct
within the prison system; and whether there was a level of negative reporting about
the respondent by some prison officers and psychologists working in the system.
[29] An important aspect of the respondent’s make-up has been his tendency to experience
panic attacks when in situations of stress particularly brought on outside the confines
of prison or in places with which he is not familiar. Dr Moyle was not entirely
persuaded that they were true panic attacks without further exploration. A significant
personality trait of the respondent, particularly for this assessment, is his tendency to
lie and engage in manipulative behaviour. The respondent has admitted himself that
he lies regularly. Therefore, what he tells people about himself must be treated with
caution whether it be perceived by others as to his advantage or disadvantage.
[30] I propose to deal with the matters to which the court is required to have regard under
s 13(4) of the Act, not necessarily in the order set out in the ss, but so as to give some
sense of chronology, and some will be dealt with collectively with others.
The respondent’s antecedents
[31] An understanding of the respondent’s early life comes from his accounts given to Dr
Moyle and Professor Ogloff and from accounts given to others operating within the
corrections system which are contained in various reports throughout the material.
They are unable to be verified since all those who might have been able to do so are,
it seems, deceased, or unable to be traced. There is consistency in the broad outlines
although differences in detail amounting to contradictions but it is unnecessary to
explore them. Because the respondent has spent so much of his adult life in prison it
is well documented. All relevant files were made available to Dr Moyle and to
Professor Ogloff and all of that material has been exhibited to relevant affidavits.
[32] The respondent was born in Murwillumbah NSW. His parents separated when he
was very young and he had 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. The respondent was principally raised by his father who
regularly left him in the care of an aunt and uncle on a farm property. The respondent
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
and when his aunt and uncle tired of him he was given to a neighbour where he was
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obliged to work on the neighbour’s farm as he did for his aunt and uncle. When his
father returned any misdeeds were reported to him and he was severely physically
punished. He reported that his father would beat him senseless. He reported that his
father said he would consider him a man when he could beat him at fighting and then
he would be able to leave home. The respondent told Dr Moyle that a neighbour had
given him a puppy which he loved but it was used to punish him. If he did wrong the
dog was beaten or kicked. On an occasion when his father returned home the dog
apparently annoyed him, the father said it was broken in spirit, took a gun and shot it
in front of the respondent who was then about 10 years old.
[33] The respondent said that he did not have problems with the academic side of school
and the psychological intelligence test (uncompleted) administered by Professor
Ogloff put him in the high average range although others have nominated low normal
and normal. He reported social and disciplinary problems at school. He resented
being humiliated before others and it was this which brought about his expulsion
from school. He reported that he punched a teacher who had punished him in front of
the class for something which he believed he had not done. He was then almost 12
years old and thereafter worked on the farm or found other labouring jobs.
[34] The respondent left the farm after a fight with his father when he was about 14 in
which he was able to beat his father. He reported that his father said that he was now
a man and was on his own. He kept no close contact with his family. He lived off
occasional farm-hand work to survive and generally lived in the streets until he was
taken up by a motor-cycle gang after successfully acquitting himself in a hotel fight.
He drifted back onto the streets and kept himself sufficiently by fruit picking,
working on the railways and other farm-hand work from time to time.
[35] The respondent’s sexual history and relationships are set out in detail both in the files
and in the reports of Dr Moyle and Professor Ogloff. He reported that he was
sexually abused by an older cousin who was intellectually impaired when the
respondent was about 7. He said that this went on for about 3 or 4 years until he was
old enough to defend himself against the cousin. His complaints to his aunt and uncle
and father were not believed. He also said that he was sexually abused by other
cousins and an adult family member. The respondent reported that he was introduced
to heterosexual sex by his father at about 11 years of age when his father had a
woman whom he had brought home from a pub initiate him into sexual activity. His
first sexual experience with a same age girl was when he was about 13 or 14.
Although the respondent told Professor Ogloff that 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 although the latter activity, at least, is
likely to have been as much about power as sexual gratification. As is apparent from
this brief recital, the respondent had a childhood devoid of love or appropriate
socialising models.
[36] He was married for about 2 years in 1976 and had two sons with whom he has no
contact. Those children were placed in foster care and then adopted. Problems arose
with them and in 1993 the adoptive parents and the boys (or one of them) met with
him for some hours at the prison. He has had no contact since.
[37] The respondent was introduced to alcohol at the very early age of 5 or 6 years by his
father and was regularly given alcohol thereafter. He had past general alcohol abuse
and was a consumer of a range of illicit drugs. Indeed the respondent contends that
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the offences committed in 1978 were whilst he was under the influence of alcohol
and “mushroom juice”. He was provided counselling by Mr Graham Kennedy in the
Townsville Correctional Centre from about mid-1991 until early 1993 and has
abstained from alcohol and drugs in prison since. The records show negative results
for random urine testing. He had used illegally produced alcohol during his previous
long term of imprisonment.
[38] The respondent has had very limited formal education but over the years has worked
at his literacy skills. Professor Ogloff observed that vocabulary is one of his
strengths. This is evident from letters which he has written which are on his files and
also during the oral evidence which he gave to this court.
Criminal history and whether or not there is any pattern of offending behaviour
on the part of the respondent
[39] The respondent’s extensive criminal history began when he was a juvenile with
offences of stealing for which he was sent to Boys’ Homes. In summary 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 occasions. The offences were, for the most part, property and dishonesty
related offences and firearms offences. It is necessary only to discuss those offences
with a sexual element. As has been mentioned, when the respondent was 18 he was
charged with attempting carnally to know a girl under the age of 10 years on 7 March
1967 in New South Wales. He entered a plea of guilty in the Local Court at
Murwillumbah and was sentenced in the District Court at Grafton on 17 April 1967.
The only information about that offence comes from the sentencing remarks apart
from the respondent’s own comments on it. The District Court Judge said
“I suppose the outstanding feature of the case is the age of the little
girl, but that is not the only matter to be considered. There is much
to be said for the circumstances in which you committed this offence,
stressed by Mr James [presumably his counsel] as circumstances of
loneliness and withdrawal from ordinary society, but whatever that
may be you must have known that interference with a little child is
not to be tolerated at all. However, the medical certificate indicates
that the interference was but slight and there appears to be no
evidence of any permanent injury or permanent interference with her
mental makeup ... I defer passing sentence on you but I order you to
be bound over on recognisance in the sum of $100 to be of good
behaviour during the period of 3 years from this date and to appear
and receive sentence if called upon ...”
[40] The respondent denied to Dr Moyle and Professor Ogloff that any misconduct
occurred at all and said that he simply woke up with the 10-year-old girl in the bed
with her having come into his bed while he was asleep. It must be presumed that the
respondent gave instructions to his lawyer, consistent with the observations of the
sentencing judge, to make submissions as to why he committed the offence. They are
at odds with his present denial that the circumstances were anything other than
completely innocent. This is consistent with the many reports about him which tend
to show that he seeks to minimise his wrong-doing or fails to accept responsibility for
wrongful actions. Mention was also made by the sentencing judge of the
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respondent’s concern for his sick father which suggests a continuing relationship
beyond the time when he left home at 14 or 15.
[41] In 1978, the respondent’s wife had just given birth to a child and he invited friends to
celebrate at his house in Redcliffe. In the course of the festivities he forced a girl of
12 who was present at the party to enter a room with him and threatened her with a
rifle unless she consented to sexual activity. He allowed her to leave the room to go
to the toilet but later forced her back into the room and brutally raped her. It seems
that the adults present were too terrified of the respondent to go to her assistance.
According to the sentencing judge “the medical evidence shows that she was severely
injured”. When her 15-year-old sister went to her aid the respondent asked her for
sex and on her refusal struck her with the butt of the rifle on her head on two
occasions which caused blood to flow. The respondent was arrested that day and
charged. He was remanded in custody and on 16 March 1979 was released on bail.
He absconded and was arrested in Darwin some 18 months later. He was extradited
to Queensland and on 8 October he pleaded guilty to indecently dealing with a girl
under the age of 14, rape and unlawful wounding in the Supreme Court in Brisbane.
As has been mentioned, he was sentenced to a head sentence of 13 years. The
respondent maintains that he has no memory of these events because in addition to
consuming alcohol he had been drinking “mushroom juice”.
[42] The respondent was imprisoned in Townsville for the first 7 years of his sentence. In
May 1988, notwithstanding concerns expressed by a parole officer and a corrections
psychologist that he should undergo a comprehensive psychiatric assessment prior to
a final decision on his transfer to release to work, he was granted release to work to
live in a hostel in Kennigo Street, Brisbane. Shortly afterwards the respondent
suffered an anxiety attack in a city street and was taken to hospital. He was returned
to secure custody on 26 July. It was recommended that the respondent should
undertake intensive counselling to assist his pre-release plans and he was transferred
to Wacol where he was to undergo a program before further community release. This
program was not available and on 14 September 1988 he was released subject to
parole supervision on the usual conditions, see “JAS-1” to the affidavit of Julie Ann
Steel filed 29 July 2003.
[43] The respondent left Brisbane on 24 September without the knowledge of his parole
officer and hitch-hiked to Townsville where 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. It was on that day
that he committed the serious sexual offences for which he has most recently been
imprisoned. His parole was suspended on 7 October 1988, the day he was
apprehended, and he was remanded in custody with respect to the new offences and
his parole subsequently cancelled.
[44] There is no dispute that the respondent was released on parole with very little, if
anything, in place for his support and reintegration back into the community. He had
nowhere to live and no money and fraternised with people from prison who helped
him become a seller of drugs. He had said that he had had consensual sexual
relations with a number of women after leaving prison before committing the
offences in question. He has told people that he was introduced to the woman who
became the complainant because he had heroin for sale. She offered him sex in
return for drugs. According to the respondent, they went back to his flat and both
injected heroin. They had sexual relations involving oral, anal and vaginal sex. He
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saw headlights approaching the flat and was fearful of a police raid because he had
drugs and drug paraphernalia in the flat. As he was trying to dispose of this evidence
the complainant, he alleged, ran off with his drugs. He chased after her after realising
that the approaching people were friends and not the police. When he caught her he
hit her in the back, dragged her back to his flat while he kicked her and hit her head
against telephone poles. He continued to beat her after dragging her back into his
flat.
[45] The respondent pleaded guilty to sodomy but maintained that the sexual conduct was
consensual. However the jury accepted the evidence of the complainant and he was
convicted of rape. In his sentencing remarks, Mr Justice Kneipp, relying on the
evidence of the complainant, said that once inside the house on the first occasion, the
respondent “brutally assaulted her and then [he] inflicted a series of most degrading
acts upon her”. On the respondent’s account the only assault related to the alleged
theft. 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
this hearing, to have the court accept that he was telling Professor Ogloff how he felt
at the time of the offence.
[46] It is reported that the respondent said that he committed those offences to secure a
return to custody.
[47] On 22 August 1989 he was convicted of stealing between 1 September and 31
October 1986 whilst in custody.
[48] The respondent has spent almost 23 years in prison since October 1980. The three
most serious crimes relate to sexual offences. Two involve children. There has been
no psychiatric finding of paedophilia. Dr Moyle considers the absence of an
understanding of what was in the respondent’s mind at particularly the time of the
1978 offences makes it difficult to conclude whether his behaviour is explicitly
sexual or merely reflects the style of relating to others that he has used in his life –
hostility and violence. For the same reason, a conclusive diagnosis of no paraphilia
cannot be made.
Efforts by the prisoner to address the cause or causes of the prisoner’s offending
behaviour, including whether the prisoner participated in rehabilitation programs
and whether they had a positive effect on him
[49] The respondent has good institutional behaviour particularly since he returned from
participation in the Sex Offenders Treatment Program (“SOTP”) in Brisbane in
1995. He is noted to be a hard and competent worker. He has engaged in a number
of vocational type courses. He completed a fork lift course conducted by Advanced
Industry Training on 16 June 1993. He worked at the prison Recycling Plant from
15 September 1993. He undertook a Foundation Nursery Skills course in February
1997 run by a TAFE college. He worked at a nursery from 11 June 1997 and
partially completed the Australian College of Tropical Agriculture Certificate 1 in
Vocational Access in March 2003. He was granted leave of absence for release to
work purposes on 12 July 1998 as a labourer for Chessell Springs Pty Ltd.
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12
[50] However when he was offered professional intervention programs to assist with his
personality deficits he has generally declined to participate or failed to attend.
[51] He was listed to complete a stress management program on 5 November 1992 but
failed to attend. He failed to attend a similar program in the following month. He
did receive a certificate for satisfactory participation in handling anger and conflict
in November 1993 and attended cognitive skills workshops for attitudes, choices,
responsibility and self esteem in early 1996. I will deal separately with his
participation in the SOTP which commenced in late 1994. He was referred to a
psychologist to assist him with childhood issues following SOTP recommendations
but failed and then refused to attend. He was offered a further SOTP towards the
end of 1997 but refused and, at the same time, refused to participate in a cognitive
skills program. He was offered one-on-one counselling with a resident psychologist
and refused. He failed to attend substance abuse core programs in 1998 and a
management relapse prevention course in 2001. He did not attend any programs in
CORE cognitive skills programs in 1997, 1998 and 2001 after being enrolled. He
terminated psychotherapy sessions which had been recommended by Professor
James with Mr de Groot in 1999. He declined to continue with extra support
through Mr Tessman-Keys with whom he had become familiar through the 5
months he attended the SOTP and with whom he apparently got along.
[52] Mr Bruce Young, a psychologist employed with Corrective Services, has been
professionally involved with the respondent as his sentence manager and
psychologist for some years. His first involvement was as a case manager
responsible for six monthly reviews on the respondent’s progress and rehabilitation.
The respondent refused to attend the sentence management reviews conducted by
Mr Young on 16 December 1999 and 26 June 2000. Mr Young concluded that a
multi-disciplinary approach was required for the respondent’s management and
rehabilitation. On 2 June 2000 a meeting involving management coordinators and
support officers, psychologists and counsellors met to discuss rehabilitation options
and release plans for the respondent. As a result he was referred to Professor Basil
James for a report concerning farm placement and the benefit of one-to-one
counselling as well as other release plans.
[53] Professor James had first reported to Corrective Services about the respondent after
examining him in July and August 1998. This was to provide an opinion as to his
psychiatric status and to make comments about his rehabilitation. Professor James
noted that the respondent was not suffering from any psychiatric illness, that he
engaged well and seemed keen to share his experiences. He seemed to have good
insight into the nature of the problems and those responsible for his rehabilitation.
In Professor James’ opinion his early developmental experiences were such that, in
addition to more socially orientated and adaptive capacities, his “inner world”
needed serious and focussed attention. If this were not given he believed “both Mr
Fardon and the staff responsible for rehabilitation would be facing an impossible
task.”
[54] In the absence of a suitable special facility in Queensland for treating
therapeutically people with the respondent’s problems Professor James considered
that “the most important missing ingredient to date has been individual long-term
psychotherapy of a dynamic kind and in Mr Fardon’s case based on the so-called
‘self-psychology’.”
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13
[55] Professor James considered moving the respondent to the prison farm without
specific preparation would constitute an unacceptably high risk. He said that the
respondent
“speaks of the unbearable anxiety and inability to cope which besets
him when he is in a less-structured environment, and although he
would very much like to be able to make the adjustment to the wider
community he is aware of the gulf that exists between his present
ability to deal with it, and what would be required.”
He believed that the respondent’s transfer to the open-prison farm environment
could occur but slowly with careful psychotherapy and preparation.
[56] Corrective Services acted on Professor James’ recommendation that he should
receive treatment from Mr de Groot, who worked with Professor James and who he
described as the most appropriate psychotherapist in Townsville.
[57] It was proposed that the respondent should receive weekly 50 minute psychotherapy
sessions to assist him “with the slow process of the integration of his personality”.
Mr de Groot had six meetings with the respondent but on the 16 December 1998 the
respondent terminated the sessions because he believed that there was a conspiracy
between Mr de Groot, Professor James and the Ombudsman. Mr de Groot reported
“I would hope that now that time has passed, this man might
reconsider and re-engage into psychotherapy as a means of providing
a safer entry into society. This would also provide an ongoing
backup that he could utilize on a twice-weekly basis when finally
released. Without this, I feel that his chances of survival when
released are slim.
I believe that until this man undergoes and completes a course of
therapy with a person skilled in psychodynamic psychotherapy, the
future holds little for him other than possible re-offending to gain re-
entry into the penal system.”
[58] Professor James reported in August 2000 of a further meeting with the respondent.
He spoke to Professor James of his belief that he had in many ways “painted
(him)self into a corner” meaning that he had created a sense of apprehension with
respect to his potential re-offending. He told Professor James that such
communications had been intended to impede any precipitate discharge. Professor
James reported that he expressed “more than once in quite unequivocal terms his
assurances that he would never commit a serious offence”. All Professor James
could offer at that point was a “round table conference” about the respondent’s
rehabilitation.
[59] Subsequently the respondent has refused to transfer to the Moreton Correctional
Centre in Brisbane to have his anxiety disorder treated and to have his behaviour
monitored. On 6 February 2001 Mr Young reported to the General Manager of the
Townsville Correctional Centre concerns held by a number of the professionals in
the corrections system about the respondent’s failure to commit himself to
rehabilitation programs. Although Mr Southwood challenged Mr Young about
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14
unjustifiably strongly expressed views about the respondent, they were only matters
of detail and did not affect the overall tenor of the report that there had been
singular lack of success in rehabilitation strategies for the respondent due to his lack
of co-operation.
[60] Mr Young prepared a detailed report for the Townsville Regional Community
Corrections Board dated 11 October 2002. He concluded that without a solid pre-
release program and psychotherapy and psychological intervention aimed at
reducing the respondent’s level of fear of returning to the community, the release
plan which the respondent had then put forward was not viable. Reference was
made to his recent behaviour at a church-based integration program which was said
not to have been appropriate. The directors of that program gave evidence at this
hearing. Although the respondent attended on 12 occasions he was oppositional to
the life skills program being offered. There was thought to be an inappropriate
attachment to a female with a seven-year-old boy who was a volunteer at the centre.
[61] Mr Young recommended that the respondent, apart from receiving professional
support, demonstrate his ability to progress in his reintegration by residing at the
farm before being considered for post-prison release. He recommended that he
complete all programs which had been recommended to him previously including
cognitive skills, anger management, substance abuse education programs and
substance abuse relapse and prevention programs and the SOTP. Mr Young
continued to hold those opinions in a memo dated 3 October 2002 to the Regional
Director of Corrective Services and at this hearing.
[62] Ms Berryl Buckby, a psychologist with Corrective Services, commenced seeing the
respondent in April 2003 for the purposes of assisting him to cope with anxiety
prior to his release into the community. She saw him for seven formal sessions
varying in length from between 40 minutes to 90 minutes. After the seventh session
she discontinued sessions. She found him upset and angry but modestly
cooperative. She thought that up until the last session there had been some trust and
respect between them but on this occasion on 3 July 2003 he was “extremely
resistant and seems to have regressed to a pre-intervention stage”. She said that he
was very focussed on venting his anger and frustration.
[63] The respondent engaged in therapeutic counselling with Mr Russell Fraser, a social
worker employed as a tutor on a part time basis by Corrective Services in the
Townsville Correctional Centre. He saw the respondent approximately weekly for
about an hour from about October 2000 until October 2001 with a break of
approximately 6 weeks over Christmas. He had no contact with the Centre during
2002 but during the therapy sessions had offered to assist the respondent when he was
released from prison. He was approached more recently to see if he was still
interested in following through that offer and said that he was. He has spoken to the
respondent for about 10 minutes since the end of the therapy program in October
2001. He believes that he had been able to establish a good rapport with him. When
the sessions concluded he thought that the respondent had demonstrated a desire not
to re-offend because of the harm this would cause his victims. He believes that the
respondent has developed “his own internal sanctions against re-offending and to
have a deeper level of insight into his offending behaviour”. In oral evidence Mr
Fraser said that during the sessions he believed the respondent “started to develop
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15
some awareness – or a greater level of awareness of the effect that his behaviour had
on other people”.
[64] Mr Fraser is part of the plan advanced on behalf of the respondent should he be
released into the community. He makes the point that it is likely that the respondent
will continue to have difficulties with psychologists and/or counsellors who are
employed within the prison system because he perceives their authority as being
derived from the prison and having a punishment and not a therapeutic purpose.
[65] The respondent participated in the SOTP at the Moreton Correctional Centre in
Brisbane between September 1994 and April 1995. It was a 45 week program of
which the respondent completed 26 weeks. He was said to be transferred out of the
program because of inappropriate institutional behaviour and not because of his
response to the program although he does seem to have inhibited the other
participants from progressing satisfactorily. Mr David Tessmann-Keys was a
psychologist in the program and the respondent’s individual case manager over a five
month period. He prepared a lengthy summary of the respondent’s participation in
the program dated 6 June 1995. He gave oral evidence at the hearing but was
dependant upon his reports for his recollection of events and so it is appropriate to
refer principally to what he wrote at the time. Psychometric assessment was
administered to the respondent when he entered the program. Mr Tessmann-Keys
noted
“Mr Fardon’s extreme scores on the Superego Strength Socialisation
Depression and Psychoticisim [sic] scales would seem to indicate
that his general motivation is of a hedonistic nature and often marked
by a pessimistic approach to his life situation.
Such scores may be correlated with his generally demanding and
often pessimistic interactions with treatment staff. His hedonistic
tendency may also be correlated with what appears to be a lack of
concern for the welfare of others as indicated by the nature of his
crimes and his apparent inability to establish any sense of empathy
for his victims (superego strength).
His high scores on the psychoticisim [sic] scale (P) is consistent with
his scores on the paranoia (Pa) and schizophrenia (Sc) scales. Thus
indicating that his thoughts are often disorganised, he retreats from
reality and he often feels persecuted.
... Therefore, although self sufficient and self driven his hedonistic
tendencies, seeming driven by a lack of trust and a sense of
persecution often defends himself both physically and intellectually
in an anti-social fashion.”
He did not complete an exit assessment since he left the program
prematurely.
[66] The respondent completed the pre-entry and treatment planning phases of the
program and was involved in the effective relationships and victim issues module
when he was transferred out of the program. The reports which Mr Tessmann-Keys
received from the facilitators of the pre-entry phase indicated that although the
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respondent exhibited a high level of motivation and a considerable depth of insight
into his own behaviours he was restricted by his tendency to regress to past
behaviours based on his beliefs about the correctional system and entrenched patterns
of interaction with others. He was noted to have discarded physical violence as a
coping mechanism which was seen as encouraging. He was noted to be inhibited by
his earlier experiences of childhood abuse and requested additional support which
was provided to him by Mr Tessmann-Keys in one-on-one contact.
[67] His involvement in the treatment planning module was marked by high motivation
but inhibited by his perceived unjust treatment by the system and expectation that the
treatment providers “must fix him” representing, as Mr Tessmann-Keys observed, a
limited sense of ownership of his problems. Throughout the victim issues module the
respondent was not prepared to consider the effects of his offences on his victims.
This was thought to have been blocked by a very powerful victim’s stance based on
his own sexual and physical abuse as well as his treatment while incarcerated. Mr
Tessmann-keys noted
“Throughout his group participation Mr Fardon would often seek the
support of other group members, diverting from the treatment issues
and focussing on legalistic justifications for his behaviour. This
served to inhibit other group members’ learning opportunities. Since
his departure the group has regained direction and are beginning to
function quite well.”
[68] During his contact with the respondent, Mr Tessmann-Keys encouraged the
respondent no longer to allow himself to use his early experiences as a defence
against taking responsibility for changing his behaviours and beliefs and to develop
alternative coping strategies. Mr Tessmann-Keys noted the respondent’s ability to
verbalise and conceptualise alternative behaviours but he seemed unable to
implement such changes. Although no charges were laid, the respondent was
transferred back to Townsville after allegations that he had made threats of physical
violence towards another inmate and had also soiled a number of inmates’ cells. That
conduct operated against a conclusion that progress was being made.
[69] The respondent had received drug and alcohol counselling over a two year period in
Townsville from Mr Kennedy but he had no structured relapse prevention plan. Dr
Moyle and others considered that although the respondent had not used illicit
substances whilst in prison and contended that he had a strong motivation not to do
so, his extensive history of substance abuse demanded a more formalised approach.
[70] In his affidavit filed on 31 July 2003 the respondent explains that he declined to take
part in a number of courses which had been recommended by Mr Young because they
had been completed as part of the SOTP course at the Moreton Correctional Centre.
He deposes that he did not complete the full SOTP course “because of the trauma I
was undergoing at that time as a result of the realisations that occurred for me during
the SOTP,” contrary to Mr Tessmann-Keys’ explanation. He says that has declined
other offers to complete the course because of his past experiences of participating in
the program which brought him so much grief when he realised how much suffering
he had experienced as a victim. He says he feels shame and remorse for what he has
done to the victims of his crimes and has tried to convey this to psychologists and
others.
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[71] The respondent complains that since 1993 he has consistently sought assistance to
reintegrate into the community prior to his release but it has not been provided to him
“in any consistent or meaningful way”. He explains that he chose not to complete his
leave of absence with the church group because it was close to a park where other
former prison inmates lived or congregated. They came to the centre for their lunch,
recognised the respondent and approached him with offers of drugs, alcohol and sex
which he declined. This was contrary to the account given by the directors of the
centre who were concerned about his inappropriate attitude to women volunteers and
to the program generally.
[72] The respondent says that he is highly motivated to leave prison and to live and
participate in the community again. He explains his anger or emotional response to
prison authorities when they have spoken to him about release because he believes
they have consistently ignored his requests for help and that their motives in asking
him questions about release are questionable. His response to the allegations that he
has said that he would kill to return to custody is to deny that he did so. He had put a
“spin” on his comments by suggesting that what he was saying was expressing his
fear that he would end up living with other ex-prison inmates and that if trouble broke
out he would be blamed and would return to prison. Expressing his fears, he says,
has led to him being misinterpreted as making threats.
The report prepared pursuant to s 11 and other medical, psychiatric,
psychological or other assessment relating to the respondent
[73] Section 13(4)(a) requires the court to have regard to the reports prepared by the
psychiatrists pursuant to s 11 of the Act. Sub-section 13(4)(b) requires the court to
have regard to any other medical, psychiatric, psychological or other assessment
relating to the prisoner. Dr Moyle, a very experienced forensic psychiatrist and
Professor James Ogloff an eminent psychologist in the field of forensic risk
assessment gave detailed attention to the question of the risk of the respondent re-
offending by committing a serious sexual offence. They had very similar
methodologies and differed little in their assessment of the respondent. They
prepared detailed reports and gave extensive oral evidence. They had access to and
read all information on the respondent held by Corrective Services, court documents
including witness statements and sentencing remarks. They both interviewed the
respondent for slightly more than four and a half hours over a day and were made
familiar with the provisions of the Act. The respondent was informed of the purpose
of the interviews and that the discussions would not be confidential. He co-operated
with them in the assessment.
[74] Professor Basil James, a consultant psychiatrist in private practice in Townsville, has
seen the respondent as mentioned on three occasions at the request of Corrective
Services – July and August 1998 and August 2000. He has written a number of
reports about the respondent, to which I have referred earlier, although none after the
implementation of the Act. He was asked to consider the application of both s 18(4)
and (6) of the Criminal Law Amendment Act 1945 and the Mental Health Act 2000 to
the respondent. He is a highly qualified psychiatrist having been a Professor of
Psychiatry at both James Cook and Queensland Universities and Professor of
Psychological Medicine at the University of Otago in New Zealand and some time
Director of Mental Health in the Department of Health in Wellington, New Zealand.
He has concluded
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“Given the nature of Mr Fardon’s personality structure, including its
intrinsic system of values, and the fact of his very prolonged
institutional life, it is my opinion that a substantial risk exists that Mr
Fardon will commit further offences, including offences of a sexual
nature upon or in relation to a child under the age of sixteen years,
were he not to continue to be housed within a structured and secure
environment such as that currently provided by the Correctional
Services Department.”
[75] Dr Brian Boettcher was asked to review and report on the respondent in November
2000. He was then Director of the Forensic Mental Health Service in North
Queensland. He has qualifications both in psychiatry and law and extensive
experience in making forensic assessments. He doubts that his opinion about the
respondent would be revised if he saw him now. He wrote
“The most important aspect of this report is that he does not suffer a
mental illness. He does however, suffer from a Socio-pathic
Personality Disorder and this was mentioned in 1994 in the progress
notes. His panic attacks continue to be a major problem for him.
I believe that if he is discharged from Prison, he will re-offend. He
said that he would become extremely angry if he is just thrown out
onto the street without any assistance and that he may co-operate
with a program that is being worked out between himself and the
Psychologists. He is very fearful of tackling this program however.
He, himself cannot give me any guarantees that he will not re-offend
again and I think with the very serious risk that he presents, when
one takes all the factors into account, then there is a high chance of
him of re[sic]-offending.
He is very resistant to the idea of any medication being used,
although there may be some that could help him with the panic
attacks.
I have read Professor Basil James’ report and can concur with it
completely. In view of the serious risks he presents of re-offending,
and the threats that he has made together with his complete lack of
remorse and belief that the system has completely abused him,
together with the lack of treatable psychiatric diagnosis, I believe
that indeterminent [sic] sentence should be considered.”
[76] All of the psychiatrists concluded that the respondent does not suffer from a disease
of the mind and neither is he unable to control his sexual instincts. For many years he
has been diagnosed as suffering from an Anti-Social Personality Disorder brought
about by his early developmental experiences and consolidated by prolonged periods
of institutionalisation.
[77] A major concern to the psychiatrists and psychologists are the respondent’s panic
attacks from which he suffers when in an unknown and therefore, to him, unsafe
environment. He is resistant to taking any medication which may assist him. Over
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the past several years he has made threats on four occasions to kill someone, either a
Corrective Services officer or a member of the wider community should he be
released, in order to be returned to prison. He has told many people over the past
decade that prison was his home and he could not function outside. At least since his
pending release date approached he was expressing great anxiety about the need for
assistance to prepare him for life back in the community. He expressed this concern
at his appearance before the Townsville Regional Community Corrections Board on
11 October 2002:
“ ... maybe, if, some form of Home Detention and Parole is granted
to me, with conditions that I seek or they make me have help by way
of a psychologist or counsellors or debrief me, take some of the post-
traumatic stress disorders and everything like that, ok, I’m anti-
social, anti-everything. I can’t fit into society. I can handle in here
because I am used to it, I have survived in here. But put me into an
alien environment now, how am I going to react, I don’t know, I
can’t answer those questions. I am sorry. But I know I’m not going
to survive there.”
[78] It is appropriate to consider Professor Ogloff’s report and evidence when considering
that of Dr Moyle. Both Dr Moyle and Professor Ogloff were careful to stress that
present scientific tools did not permit a determination, with a reasonable degree of
accuracy, of an individual’s likelihood of being violent or re-offending sexually.
What has been developed and validated are risk assessment schemes principally in
studies in Canada and the United Kingdom and used in Australia. Those familiar
with both the schemes and the person under investigation and having the necessary
skills are able to identify with ‘some degree of accuracy’ the category of risk into
which the person is likely to fall. Beyond that, from a scientific perspective, it is
impossible to state with confidence whether a particular individual will re-offend. A
clinical judgment may be made, informed by actuarial analysis, about the risk which
a particular offender presents. Dr Moyle and Professor Ogloff and, to a lesser extent,
Professor James and Dr Boettcher, approached their assessment of the risk of the
respondent committing a serious sexual offence in this manner although the latter
were much more comfortable with and dependant upon clinical assessment informed
by a detailed knowledge of the respondent’s history.
[79] Dr Moyle identified a number of factors currently considered in the literature most
relevant in determining who are most likely to be recidivists:
• those who fail to complete sex offender programs;
• those who have a history of significant substance abuse;
• those who have negative mood states;
• those who have considerable anger and hostility;
• those who have access to victims;
• those who are younger;
• highly significant are those who have a variety of victims;
• those who have more than one paraphilia;
• greater than five offences;
• a lower IQ;
• higher psychopathy rating;
• those who have difficulties maintaining intimacy;
• those with negative social influences;
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• those with anti-social attitudes or attitudes that promote
sexual offending;
• those with poor general self-regulation.
He identified the respondent with many of these factors. As to the challenge from
Mr Southwood that the respondent was a model prisoner, Dr Moyle pointed out that
this was in the structured prison setting so far as daily functioning was concerned
and that the respondent had engaged in oppositional behaviour to participating in
programs designed to assist him to rejoin the community.
[80] Both Dr Moyle and Professor Ogloff administered the psychopathy check list-revised
(PCL-R). The scoring clearly involves some subjective assessment of the historical
material but they had similar scores – Dr Moyle assessed the respondent at 34 out of a
possible 40 and Professor Ogloff at 31. Professor Ogloff noted that there is a
standard error of measure of approximately three points. A score of 0-2 may be
given.
Personality Attributes Contributing Dr Moyle Prof. Ogloff
To the Concept of Psychopathy
Glibness/superficial charm 2 2
Grandiose sense of self-worth 1 1
Need for stimulation/proneness to boredom 1 1
Pathological lying 2 2
Conning/manipulative 2 2
Lack of remorse/guilt 2 2
Shallow affect 2 2
Callous lack of empathy 2 2
Parasitic lifestyle 2 1
Poor behaviour controls 1 1
Promiscuous sexual behaviour 1 1
Early behaviour problems 2 2
Lack of realistic long term goals 2 1
Impulsivity 1 1
Irresponsibility 2 2
Failure to accept responsibility for actions 2 2
Many short term marital relations 1 1
Juvenile delinquency 2 1
Revocation of conditional release 2 2
Criminal versatility 2 2
Higher scores on the PCL-R are suggestive of an increased level of risk for re-
offending. On Professor Ogloff’s assessment the respondent fell at the bottom end
of the high range, indicating that he demonstrates many but not all of the personality
traits and behaviours associated with psychopathy. On Dr Moyle’s assessment he is
in the middle of the high range of risk.
[81] It is generally accepted that as an individual ages the personality characteristics
associated with psychopathy remain relatively stable but the behavioural aspects tend
to reduce over time. At least in the context of the prison system the respondent’s
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behaviour has become quite stable since the early 1990’s. During his earlier term of
imprisonment and at the commencement of this term there was significant volatility.
[82] Dr Moyle identified a number of potentially modifiable high risk factors, namely:
1. Violence occurs when intoxicated.
2. Panic disorder is treatable if he accepts treatment (Dr Moyle has
some reservations about whether he actually suffers from this
disorder).
3. He could control his thinking to cease persistent angry, hostile
responses and give effect to what he has learnt in his anger
management and conflict resolution courses.
4. Limited access to potential victims to demonstrate that through
his own efforts he can minimise his risk to others.
5. Increasing manual work in lower risk environments would allow
him to continue to achieve occupationally as he has in the past.
6. Individual treatment could be undertaken targeting his sexual and
physical violence.
[83] Dr Moyle concluded that the respondent was at the top of any measurable risk
assessment for committing an illegal offence which meant that his risk of offending
‘would be greater than 50:50 based on research outcome data currently available’.
The risk that a sexual offence would be committed if he re-offends is ‘approximately
half of that’. Dr Moyle explained that the respondent fell into the group of 51 per
cent of persons likely to re-offend and of that category of persons there was a greater
than 50 per cent chance that he would offend with a serious violent sexual offence.
This was consistent with Professor Ogloff’s findings.
[84] Professor Ogloff dealt with other assessment schemes referred to descriptively by Dr
Moyle. The HCR-20 was developed in 1995 and revised in 1997 to provide
information about both static and dynamic factors that have been found to relate to a
likelihood of re-offending violently. They are historical, clinical and risk
management and have been found to relate significantly to the risk of future violent
offending. It takes into account the respondent’s past behaviour, current functioning
and future level of risk, that is, risk management. He found that the respondent’s
level of risk on the historical subscale placed him at a high risk of re-offending
violently but identified two risk factors that the respondent did not demonstrate fully,
that is, that he was not under 20 when the first violent incident occurred and he has
never had a major mental illness. Professor Ogloff concluded that the respondent’s
clinical factors were more positive than his historical factors and would serve to
moderate the risk of re-offending indicated by his historical scale. Clinical risk
factors alone place him at a moderate level of risk of re-offending violently.
[85] As is not surprising, Professor Ogloff concluded that the most unknown component
for risk for future violence is the risk management subscale. The fact that the
respondent re-offended so quickly when he was last released from custody indicated
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how important any risk management strategy would be for him. Professor Ogloff
wrote:
“The level of risk represented by this subscale is based on
considerations about the feasibility of his future plans, exposure he
might experience to destabilising influences in his life, a lack of
personal support in his life, non-compliance with remediation
attempts that might be put into place in the future, and the sources of
stress that Mr Fardon is likely to encounter in the future.”
It is here that the major difference between Dr Moyle and Professor Ogloff emerges.
In Professor Ogloff’s view the management plan proposed suggests “some degree of
hope” that the respondent can be managed in the community. Dr Moyle considers it
is premature, but possible.
[86] The HCR-20 results indicate that the respondent is ‘at a moderate to high level of risk
for re-offending violently in the future’ and ‘only with careful and realistic risk
management planning would his overall level of risk be tempered’.
[87] Professor Ogloff considered two further instruments for addressing the respondent’s
level of risk for sexual re-offending. These were the Static-99 that is historic factors
which relate to the risk of sexual re-offending and the SVR-20 – the Sexual Violence
Risk developed to identify a comprehensive range of factors related to the risk of
sexual violence. As to the historical factors, Professor Ogloff concluded that his level
of risk for sexual re-offending fell into the high category but was tempered by his
age, that is, the studies indicate that offenders with scores in the high category who
went on to offend sexually ranged from 39 per cent over five years, 45 per cent over
10 years and 52 per cent over 15 years. Given the respondent’s age the level of risk
for re-offending would decrease over time.
[88] There are some factors in the sexual violent risk instrument which diminish the risk
of re-offending. The respondent does not appear to have suicidal or homicidal
ideation, he does not have a major mental illness and does not appear to have a
paraphilia. As mentioned, Dr Moyle is unable, on the present state of the evidence, to
come to any conclusion about paraphilia. Professor Ogloff concluded:
“Taken together, Mr Fardon would appear to fall into the moderate to
high risk category of risk for re-offending sexually and for re-
offending violently in the future. His historical and psychosocial risk
factors are high, and this is consistent with his history of behaviour
prior to his present period of incarceration. Mr Fardon’s degree of
stability and the changes that have occurred in his behaviour serve to
moderate his overall level of risk to some extent. As I will discuss in
the final section of this report, the likelihood that Mr Fardon will re-
offend violently will depend upon the extent to which his level of
risk could eventually be managed in the community and the extent to
which he would be responsive to treatment.”
[89] He thought that this might be managed in the community with intensive community
supervision and after-care. In particular the supervision order should include an order
that the respondent stay in a designated residence where he can be supported and
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supervised; an order to abstain from the use of alcohol and drugs; an order to engage
in ongoing treatment with an experienced counsellor particularly to assist him to
manage his level of distress which might occur as a result of adjusting to the
community, and offence related and specific behaviours. Professor Ogloff
emphasised in oral evidence that when he referred to supervision
“I mean intensive. I don’t mean checking in once a month in the office … A
man like Mr Fardon given his level of risk would require an experienced
Community Corrections Officer who is prepared to engage the other supports
that have been put in place to, first and foremost, be certain that if any relapse
occurred in any of the risk factors – and I mean specifically here beginning to
use substances, beginning to show any violence in the community, that,
immediately, that the Community Corrections would be notified and that
behaviour would be simply – there would be no tolerance for such behaviour.”
t/s 238.
Dr Moyle considered quite strongly that the respondent should not be released quickly
“… until a graded release has occurred and he’s been allowed to
show those that are monitoring his graded release that he is able to
comply with the community mental health professionals, such as Mr
Fraser, until attendance has been stabilised and he has been able to
sustain that attendance even when difficulties arise … He would
need to have some activity to engage himself in during the day,
designated employment, voluntary employment and other activities
and social support away from potential victims and children. That
can be assessed by a Community Correctional Officer doing random
checks on whether he is complying with it. … A designated
agreement to abstain from all drugs and alcohol but a measurable
agreement. Mr Fardon should be monitored by random urine and
blood samples if he is out in the community and he should be able to
show that he is supported in that approach by attendance with the
designated drug and alcohol counsellor, and again this should occur
even when difficulties arise, when he starts to panic or when he has
an upset he should not abandon those who have tried to provide
support, and to counter any impulse to re-offend, if he finds himself
out in the community and doesn’t feel like he’s coping … I think
there would be several steps to take before I could recommend a
community supervision order in any shape or form. t/s 43-4.
He suggested that the respondent first be moved to an open
classification within the prison system.
[90] Dr Moyle concluded that the modifiable factors which he associated with the
respondent ‘are not likely to be adequately managed quickly’.
“At present he has not achieved the observable outcomes for safe
community placement to be recommended and therefore he could
only be released on criminological grounds, i.e. end of sentence, not
because a clinician has recommended release.”
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[91] He recommended against the respondent’s ‘immediate release’ but he could support
release for short periods as a trial in light of the support offered to the respondent in
the community.
[92] Professor Ogloff agreed that a graded release program with monitoring would
“perhaps” be a preferable option. He did not agree that change within the corrections
system, to another locality, to ascertain if he can cope with change would be of
assistance.
The Proposal
[93] The respondent has put forward a proposal for his release into the community. It has
been considerably changed and refined since Dr Moyle interviewed him on 7 July
2003. He told Dr Moyle that he proposed living with a woman friend who has visited
him in prison on a temporary basis but had no other firm plans. By the time he was
interviewed by Professor Ogloff on 13 October 2003 a more comprehensive program
had been developed. Mr and Mrs A B have known the respondent for six years
through their visits to the Townsville Corrections Centre with a church ministry
group (not the life skills group referred to earlier). They have visited the respondent
on family days for about five years and believe they have a good relationship with
him. The respondent broke off contact with them about 12 to 18 months ago. He
told them that it was because he understood that he feared that they might become the
target of community vigilantism if it became known that they had offered to
accommodate him on release. In light of his personality traits that explanation must
be treated with some reserve. Mr and Mrs A B arranged a visit with the respondent
on 21 October 2003 and resumed their friendship. Notwithstanding their detailed
knowledge of the nature of the offences committed by the respondent they are
prepared to have him live in their home for as long as necessary to rehabilitate him to
community life aware that he will be alone in the house with the wife when the
husband works three nights a week. The wife is employed during the day. The
husband works one day and three nights and would otherwise be available to offer
support to the respondent. They gave oral evidence and seemed firm in their
commitment. They expressed the view in their affidavits that a person has a right to
rejoin society and amend his life once his sentence is served in reparation for crimes
committed.
[94] A part-time court and prison chaplain employed by the Salvation Army has known
the respondent for some 10 to 14 years, seeing him approximately weekly over that
period and feels he has developed a comfortable relationship with him. He is willing
to offer the respondent consistent moral and practical support on most afternoons
during the working week.
[95] A Uniting Church prison chaplain who has known the respondent for about four years
and assisted him in dealing with the death of friends in prison has offered assistance
to the respondent and to liaise with professional counsellors within the Uniting
Church. She has also offered to share some recreational activities with him. She
offers support for Mr and Mrs A B who live nearby.
[96] A social work co-ordinator with Catholic Prison Ministry in Brisbane has had eight
discussions with the respondent since September this year about his plans post-
release. She has made arrangements with Centrelink and an employment agency on
his behalf. She has acknowledged the slow process that his desensitisation to
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institutional life will involve and has discussed this process with Mr Russell Fraser.
She notes that the respondent will be able to garden and interact with animals at Mr
and Mrs A B’s home, something which has assisted him in the prison environment.
[97] Mr Fraser proposes continuing to treat the respondent in the community two or three
sessions weekly and would otherwise be available during normal weekly working
hours. Although Mr Fraser’s sincerity was not in doubt, nor his professionalism, I
was concerned that he appeared to accept the respondent’s own assessment of his
newfound empathy with his victims. As the experienced psychiatrists and
psychologists have concluded, the respondent has a very complex personality, lies
and is manipulative.
Conclusion
[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.
[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.
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[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.’ Professor Ogloff hinted in oral
evidence that the SOTP program might not be the most appropriate for the respondent
and, indeed, this was recognised by Mr Tessman-Keys at the time. This could be
further explored. 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.
[102] The order is that Robert John Fardon be detained in custody for an indefinite term for
control, care and treatment.
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Official source: https://www.sclqld.org.au/caselaw/QSC/2003/379