Exit Distraction Free Reading Mode
- Unreported Judgment
- Appeal Determined (QCA) - Appeal Determined (HCA)
Attorney-General v Fardon QSC 275
SUPREME COURT OF QUEENSLAND
Attorney-General for the State of Queensland v Fardon  QSC 275
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
BS5346 of 2003
Supreme Court at Brisbane
27 September 2006
20 & 21 July 2006
CRIMINAL LAW –JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – OTHER MATTERS – QUEENSLAND – whether the Dangerous Prisoners (Sexual Offenders) Act 2003 applies to the respondent – whether respondent is a “serious sexual offender” – whether respondent is to be released from prison subject to a supervision order – conditions appropriate and practicable to reduce the risk to the community – duration of the order
Dangerous Prisoners (Sexual Offenders) Act 2003, Division 3, s 8, s 11, s 13(2), s 13(4), s 20, s 27, s 27(2), s 29, s 30, s 30(3), s 30(5)
Fardon v Attorney General of Queensland (2004) 78 ALJR 1519
M Hinson SC for the applicant
D O'Gorman for the respondent
Crown Law for the applicant
Prisoners Legal Service for the respondent
- LYONS J: The respondent, Robert John Fardon, will be 58 in October 2006. Since the age of 18 he has spent most of his life in prison. The last 27 years in prison have been spent serving terms of imprisonment for violent sexual offences. The first sentence of imprisonment was for 13 years and related to offences committed in 1978. When he was released in 1988 he committed further violent sexual offences and in 1989 he was sentenced to a further term of 14 years imprisonment.
- The respondent served the full term of that imprisonment and was due for release on 30 June 2003. On 6 June 2003 the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) came into force which provided for the continuing detention or supervised release of dangerous sexual offenders beyond the term of their imprisonment if the court was satisfied that a prisoner continued to pose a serious danger to the community. The stated objects of the Act are to ensure the adequate protection of the community from this class of prisoner and to provide continuing control, care or treatment of these prisoners to facilitate their rehabilitation.
- On 17 June 2003 an application was made to the Supreme Court for an interim order that the respondent be detained pursuant to s 8 of the Act. On 27 June 2003 Muir J made an interim detention order with further interim detention orders made on 31 July 2003 and 2 October 2003. On 6 November 2003 White J ordered that the respondent “be detained in custody for an indefinite term for control, care and treatment”. The constitutional validity of the Act was challenged in Fardon v Attorney General of Queensland and its validity was upheld.
- Section 27 of the Act requires that a continuing detention order be reviewed at the end of one year after it was made and afterwards at intervals of not more than one year after the last review was made. The first annual review occurred in February 2005 and on 11 May 2005 Moynihan J ordered that the respondent continue to be the subject of a continuing detention order. On 10 May 2006 the Attorney-General applied for a review of this continuing detention order pursuant to s 27(2) of the Act.
The Current Application
- This therefore is the second annual review despite the fact that it is over three years since the original application for the respondent’s continuing detention was made. The application for review is governed by s 30 which provides that on the hearing of the review the court may affirm the decision that the prisoner is a serious danger to the community in the absence of a Division 3 order only if it is satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to affirm the decision.
- If the court affirms the decision that the respondent is a serious danger to the community in the absence of a Division 3 order, the question then is whether the respondent should continue to be subject to a continuing detention order or whether he should be released from custody subject to a supervision order. In determining this question the paramount consideration is the need to ensure the adequate protection of the community.
- In accordance with s 29 of the Act the respondent has been examined by two psychiatrists Dr Donald Grant and Dr Robert Moyle. Section 11 requires that their reports include their assessment of the level of risk that the prisoner will commit another serious sexual offence if released from custody or if released from custody without a supervision order being made.
- The psychiatrists were given copies of the records of the Department of Corrective Services for the purposes of preparing this assessment and they have set out the reasons for their assessment in comprehensive reports. Both psychiatrists also gave evidence at the hearing and were cross examined. The respondent co-operated in the examinations by the psychiatrists.
- The respondent also relied on the evidence of psychiatrist Dr Olav Nielssen. The respondent was also present during the hearing and significantly on this occasion gave evidence which is the first occasion that he has done so. Two witnesses from a prison ministry also gave evidence as to the support he would be given if he were released subject to a supervision order. Mr Micheal Airton, an officer with Corrective Services, also gave evidence in relation to the respondent’s Corrective Services records as did Mr Greg Brown. Evidence was also given by psychologist Joel Smith from the Department of Corrective Services in relation to the assessments he conducted to make a determination regarding the respondent’s risk of sexual and violent re-offence.
Is the respondent a serious danger to the Community in the absence of a Division 3 Order?
- Turning then to the first question which must be determined which is whether the court should affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 order? In relation to this question s 30 provides that if there is a review hearing under s 27 then the court must have regard to the matters set out in s 13(4) in determining this question. Section 13(4) of the Act states that the court must have regard to the following:
“4)In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following—
(a)the reports prepared by the psychiatrists under section 11 [Preparation of psychiatric report] 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.”
- Section 13(2) of the Act provides that:
“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 with a supervision order being made.”
- The respondent’s antecedents and criminal history are not in dispute and all the reports contain a similar history. The respondent’s background can be summarised as follows:
The respondent’s antecedents
- In summary the respondent’s parents separated when he was young, he never knew his mother and was brought up by an aunt and uncle who treated him harshly. He was subjected to sexual abuse from the age of seven by an intellectually disabled cousin and severe physical abuse from his father who only appeared from time to time but was frequently violent when he did appear. The respondent was educated to grade 6 when he was expelled for assaulting a teacher. After a fierce fight with his father at the age of 14 he left home.
- He eventually fell in with a group of bikies on the Gold Coast. He became involved in the subculture of the group. He became sexually active within the group where women were degraded and there was a promiscuous attitude to sex. He was also involved in the culture of violence, particularly as an enforcer who would inflict punishment on transgressors. He became involved in the drug trade and couriered drugs around Australia. He was also a gun runner. He had a brief marriage and two sons were born in 1977 and 1978. He has had no contact with these sons since 1993.
- The respondent’s criminal history was conveniently summarised by Moynihan J in Attorney-General for the State of Queensland v Fardon. That history notes that as a young man the respondent had a long history of offences in the Magistrates and District Courts mainly in relation to property, dishonesty and firearms offences. He received prison terms on at least five occasions. When he was 18 he pleaded guilty to attempting to carnally know a girl under the age of 10 years.
- In 1978, apparently while celebrating the birth of his son, he forced a girl of 12 to enter a room and threatened her with a rifle unless she consented to sexual activity. He then raped her and she was severely injured. When her 15 year old sister intervened she was struck twice on her head with a rifle butt. The respondent maintains that he was affected by alcohol and mushroom juice whilst he carried out these offences and that he has no memory of them. The respondent advised Dr Grant that within 30 minutes of injecting the mushroom juice into a vein he was “mentally twisted”.
- The respondent was arrested that day and remanded in custody until March 1979. When he was released on bail he absconded and was not arrested until some 18 months later. He 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 1979. He was 31 years of age and he was sentenced to 13 years.
- The respondent served seven years of this sentence in Townsville and in May 1988 he was transferred to Brisbane so he could undergo a comprehensive psychiatric assessment prior to his transfer for release to work. He was granted work release and went to live in a hostel in Brisbane but returned to secure custody on 26 July 1988, after suffering an anxiety attack. He was subsequently released on one day’s notice. He was given no support on release. He had nowhere to live and no money. He reverted to using drugs and alcohol within a short space of time. On 24 September 1988 he returned to Townsville without informing his parole officer and on 4 October 1988 he committed further serious sexual offences in relation to a woman who offered sex in exchange for heroin. These offences are set out in the decision of Moynihan J as follows:
“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.
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 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.
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”.”
- He was convicted of rape, sodomy and assault occasioning bodily harm on 30 June 1989 in Townsville and sentenced to 14 years imprisonment.
The psychiatrists’ reports and medical psychiatric, psychological or other assessments.
- Having examined the factual background to the respondent’s criminal behaviour, the psychiatric and psychological assessments of his criminal behaviour should now be considered. All three psychiatrists concur that the respondent has a primary diagnosis of antisocial personality disorder, with a past history of drug and alcohol abuse. All psychiatrists agree that there is no psychotic illness or any symptoms of mental illness currently present.
- Dr Grant considered that the criteria of the DSM-IV of the American Psychiatric Association were satisfied in relation to an antisocial personality disorder because the respondent had three or more of the features of the disorder namely: failing to conform to social norms with respect to lawful behaviours, repeated physical fights, being deceitful, impulsive, reckless disregard to the safety of self or others. He did not consider that this disorder was occurring as part of another major psychiatric disorder.
- Dr Grant summarises in this way:
“He may well have inherited some antisocial personality traits from his father and possibly his mother. He was raised in a violent and dysfunctional family where he was taught dishonest and violent behaviour as the norm. He was not given good parenting or role models other than antisocial models. When he was 14 he left home after violence with his father and fell into a very violent antisocial subculture with a bikie gang which further taught him antisocial values. He subsequently became part of a prison environment which reinforced violent and antisocial attitudes as the norm.”
- In Dr Grant’s opinion the respondent’s offending behaviour can be seen as one facet of the personality disorder, and that alcohol and drug abuse is another manifestation of this disorder. Dr Grant noted that the 1978 offences occurred under the influence of substances and alcohol and that the 1988 offences occurred under the influence of alcohol and heroin. He considered that the influence of drugs and alcohol on the offending behaviour was important.
- Dr Moyle agrees with this and states: “He clearly meets criteria for a personality disorder. That is not a mental illness but a descriptive term to use for maladaptive personality function. He meets the criteria for antisocial personality disorder.”
- Dr Moyle further stated that: “In interview there is no sign of major mental disorder like schizophrenia, bipolar disorder, major depression, organic brain syndromes and anxiety disorders”.
- Dr Nielssen states:
“Mr Fardon would meet the criteria for the diagnosis of antisocial personality disorder, on the basis of a history of a conduct disorder before the age of eighteen and a pattern of violence and criminal conduct as an adult. However, there must be some doubt about the validity of the diagnosis of a medical disorder that is largely defined by a history of social deviance, especially in a person who has spent most of his life in a deviant subculture and whose behaviour and attitudes have been shaped by and adapted to that environment.”
- Dr Grant also outlined that the respondent experiences anxiety and possible panic attacks when faced with unexpected or unusual situations and this was generally endorsed by the other psychiatrists. Dr Nielssen specifically expresses the opinion that the respondent could also be said to have an anxiety disorder due to his high levels of anxiety outside the prison environment. Dr Moyle states that:
“Symptoms he has described in the past have some features of Post Traumatic Stress Disorder presumably from the childhood violence he was exposed to. The major feature being that he gets anxious and panicky in situations where he feels embarrassed or under threat.”
- Against this background of an agreed diagnosis of antisocial personality disorder there is a difference of opinion in relation to whether the respondent has paraphilia. Paraphilia is a disorder of abnormal sexual interest and deviant sexual behaviour. Drs Grant and Nielssen on the one hand do not consider paraphilia to be present whilst Dr Moyle considers that paraphilia is present.
- At the hearing, Dr Moyle stated in reference to the assessments of all three psychiatrists:
“To me the differences are actually minimal …The major differences between our reports are my suspicion of sexual sadism which neither of the other two are suspicious of or are as suspicious of as myself. Secondly, my rating is high risk of recidivism whereas Dr Grant rates it as moderate to high risk of recidivism but relatively low risk of sexual sadism, if I heard his evidence correct. And Dr Nielssen’s lists the risk as low to no risk.”
- Dr Moyle believes there is paraphilia present and in particular sexual sadism where sexual arousal is linked to inflicting pain or violence on the victim. The diagnosis of sexual sadism requires that the person must have, over a prolonged period, recurrent intense sexually aroused fantasies, sexual urges or behaviours in which the psychological or physical suffering of the victim is sexually exciting to the victim.
- Whilst Dr Grant concedes that the diagnosis of paraphilia is contingent on knowing the offender’s sexual fantasy life and whilst he considers that it is possible that the respondent could be covering up violent sexual fantasies, he considers “the offending patterns and the details of the offences do not suggest the presence of sexual sadism”.
- Dr Moyle however states that the definition of paraphilia in the DSM does allow for a diagnosis based on behaviour alone and considers that the behaviour displayed does meet that criteria.
- Dr Nielssen agrees with Dr Grant and states:
“Mr Fardon has been at various times diagnosed to have a paraphillic disorder, that is, a disorder of abnormal sexual interest and deviant sexual behaviour. There have been two convictions for sexual offences involving female children and also a sadistic sexual assault on an adult woman. However, Mr Fardon has reported mostly non coercive relationships with adult women and there is little evidence of a pervasive pattern deviant sexual interest.”
- Dr Moyle was questioned on his views at the hearing and he stated that he bases his view on statements made by the respondent in the record of interview made almost 18 years ago. These statements give rise to what Dr Moyle in his oral evidence referred to as a “suspicion”.
- I also note the assessment of the respondent conducted by Robert Wood dated 5 January 2006 which is annexed to the affidavit of Joel Smith psychologist dated 5 May 2006. In his assessment he states:
“Issues surrounding the presence of a paraphilic trait of sadism with offender Fardon are unclear and on the basis of what the offender offered during assessment will cause this to remain so. As has been previously mentioned the offender denies any conscious knowledge or a deliberate decision to act in a sexually and a gratuitously violent manner toward his victim in 1978.”
- I therefore rely on the opinions of Dr Grant and Dr Nielssen in this regard as I am not satisfied there is sufficient evidence to substantiate Dr Moyle’s view of the existence of paraphilia.
The risk that the prisoner will commit another serious sexual offence if released into the community
- Turning now to the question which s 11 requires the psychiatrists to specifically address in their reports, namely their assessment of the level of risk that the respondent will commit another serious sexual offence if released or if released without supervision.
- There are a number of standard instruments which psychiatrists use to assist them in answering this question and whilst it is generally accepted that it is a difficult process, the standard approach is to combine the formal risk assessments together with a clinical risk assessment. Some of the risk assessment instruments use static or actuarial factors, which means that they evaluate past behaviours to determine risk. Accordingly if a person has been in prison for a long period the instruments rely on facts that may be very out of date. It is therefore important to use instruments which include more clinical factors and current facts to come up with a prediction of risk. The actuarial based instruments are VRAG and SORAG whereas the actuarially informed clinical judgement instruments are the HCR-20 and the SVR-20.
- The affidavit of psychologist Joel Smith dated 5 May 2006 is particularly significant in this regard and he sets out the assessments which were conducted on the respondent to evaluate his risk and intervention needs. The Static-99 was conducted to assess risk for the express purposes of program allocation and the Stable-2000 was undertaken to assess sexual offending intervention needs. On the basis of the Static 99 assessment it was determined that the offender presents with a high risk in relation to his sexual offending behaviour. It relation to the Stable-2000 however it was determined that the respondent would not be compliant with the assessment process. Mr Smith also stated that in February 2006 the respondent was offered a place in the preparatory program but refused the offer.
- Dr Moyle, who has used the HCR -20 and the SVR -20 instruments, considers “Mr Fardon remains at high risk of general including sexual offending if released into the community at present”. Dr Grant used a number of assessments including these same two instruments and in relation to the HCR-20 concluded that the respondent was in the “moderately high risk category”. In the SVR-20 test he concluded that the respondent had “moderate to high risk of re-offending”. Using the purely static actuarial instrument such as the Static 99 Dr Grant scored the respondent at 8 which puts him at a “high risk” of re-offending. The VRAG, which is another actuarial instrument, indicates that the risk of violent recidivism has a probability of .55 over seven years or .64 over ten years. The SONAR instrument which is a combination actuarial and dynamic assessment instrument however rates the respondent at a “low moderate risk of re-offending”.
- Dr Grant stresses in his report that instruments such as those set out above “largely refer to past levels of risk and in someone like Mr Fardon who has been imprisoned for many years the risk that is being measured is really that at the beginning of his imprisonment”. Dr Grant considers that from the clinical point of view there are a number of factors which actually reduce the risk of the respondent re-offending. In this regard he points to the respondent’s age and states that in people with personality disorders there is often a lessening of antisocial and violent behaviours as the person gets older. Secondly, he points to the fact that despite spending most of his life in prison in the last 15 years he has experienced some insights and understanding into his behaviours. In particular he points to the fact there have been no breaches for bad behaviour in those years and he has given up cigarettes, alcohol and drugs. Thus he believes there is objective evidence of maturity and self control which lessen the risk.
- Overall Dr Grant’s clinical assessment of risk is that:
“Taking all the risk factors into account there would probably be a moderate risk for some kind of violent offending after release, but in my opinion the risk for specifically sexual violent offending would be relatively low. The risk of sexual offending would be increased in the context of a recurrence of alcohol and drug abuse.”
- Dr Nielssen in his report reviewed the risk assessment tools used and stated “in particular I confirm my doubts about the validity of the risk assessment instruments that are based on unchanging historical information and would continue to record the same scores even if Mr Fardon were old and incapacitated”. He further stated that:
“I concur with the findings of the clinical assessment of Dr Grant, that there has been some change in Mr Fardon over time and that a combination of his age, self control, maturity and insight indicates a lower risk of offending in release. I also agree with the view of Dr Grant that the main area of concern would be if Mr Fardon returned to any form of substance abuse.”
- Drs Grant and Nielssen also referred to research which had been carried out in Queensland which shows that re-offending declines markedly over time to less than 5 per cent for all categories of sex offender by age 60. Various articles were referred to in relation to recidivism and particularly articles by Hanson and Bussiere which was a meta-analysis of sexual offender recidivism studies. This research showed that not all sexual offenders are equally likely to re-offend and that the sexual offence recidivism rate was generally low with an observed sexual recidivism rate among groups of sexual offenders in the range of 10%-15% after five years. The studies also showed that offenders released at an older age were less likely to recommit sexual offences and that sexual recidivism decreased as a linear function of age at release. These articles were commented on by the various psychiatrists and the important point was made that identifiable subgroups have much higher recidivism rates and whilst Dr Moyle maintains that the respondent has a “crime prone’” personality which puts him into a “higher risk group” he also conceded that there were some elements present which did “lower that risk to some degree”.
- All of this evidence clearly indicates that the respondent is at least a moderate risk of re-offending.
Should the court affirm the decision that the respondent is a serious danger to the community in the absence of either a supervision order or a detention order?
- As previously indicated this is the first question which must be determined and the key issue therefore which the court must be satisfied about is whether the respondent is a serious danger to the community without a Division 3 order and the court must determine this on the basis of acceptable and cogent evidence to a high degree of probability. This question must be answered afresh each time a review is conducted and the question must be answered in light of all the evidence available at the time the question needs to be determined. As Moynihan J stated in the first annual review of this case: “The purpose of an annual review is to see if continued detention is justified in light of the circumstances at the time of the review”. The applicant has the onus of proving that the respondent is a serious danger to the community.
- In accordance with s 13(4) the matters the court must have reference to in order to decide these questions have been examined and this information indicates that the answer to this question must be in the affirmative. In particular the evidence of all the psychiatrists establishes that the respondent has an antisocial personality disorder together with high levels of anxiety. Whilst there is some evidence that the respondent’s age and his improving insight and behaviour are in fact lowering the risk, there is still a risk. The actuarial instruments indicate that the respondent has a moderate to high risk of committing a serious sexual offence and even when these instruments are ameliorated by clinical factors, as two of the psychiatrists have done, he still represents a risk for some specifically sexual violent offending. It was uncontroversial as between the psychiatrists that the respondent was a serious danger to the community in the absence of either a continuing detention order or a supervision order.
- Accordingly, having conducted the review in accordance with s 27 and having had regard to the matters set out in s 13(4) I am satisfied by acceptable, cogent evidence, to a high degree of probability that the evidence is of sufficient weight to affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 Order.
Should the respondent be subject to a continuing detention order or can the community be adequately protected by the making of a supervision order?
- Section 30(3) provides that if the court affirms the decision that the respondent is a serious danger to the community without a Division 3 order then it may order either that the respondent continue to be subject to a continuing detention order or that he be released from custody subject to a supervision order. As Gummow J said in Fardon v Attorney-General (Qld):
“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 the adequate protection of the community.”
- In determining this requirement of the need to ensure the adequate protection of the community the section gives no real assistance as to the matters which should be taken into account. What has to be ensured however is adequate protection of the community, not absolute protection. As Mackenzie J has stated:
“According to s 30(3), the two options are that a continuing detention order be made, or that he be released from custody subject to a supervision order. The paramount consideration is the need to ensure adequate protection of the community (s 30(4)).
Adequate protection, not absolute protection is what is referred to.
What is adequate protection requires a judgement to be made concerning the nature of the risk, the level of risk he poses and what measures would provide protection commensurate with the risk.
Where a person has a history of violence, there can be no certainty that he will not commit further violence again if circumstances arise in which he is prone to do so. Most offenders are released into the community, without any external control, either because post prison community based release has come to an end, or they have completed the full sentence. Not all re-offend, notwithstanding that there are factors, peculiar to them, in their personality and history that suggest that there may be a significant risk that they may. The evidence of the psychiatrists confirms that risk prediction is necessarily imprecise.
Where the choice is between preventive detention, which a continuing detention order is by another name, and allowing the offender to live in the community subject to a supervision order, the difficulty is to identify, as precisely as possible, circumstances in which danger to the community is likely to occur and whether there is a degree of control short of continuing detention that will provide adequate protection to the community. That formulation of the approach to be followed recognises that continuing detention beyond the expiry date of a finite sentence imposed for an offence can only be justified by the existence of a risk that is so great that anything less than a continuing detention order would not provide adequate protection to the community from it.”
- The Court of Appeal in Attorney-General (Qld) v Francis have affirmed that this is the correct approach:
“The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.”
- In the present case the applicant has submitted that having determined that the respondent is a serious danger to the community he should remain subject to a continuing detention order because the risk that he will commit a serious sexual offence is not an unacceptable risk if he is detained. The respondent has submitted that the detention order should be rescinded and the respondent be discharged pursuant to s 30(5). In this regard the views of Drs Grant and Nielssen would seem to be that if the respondent cannot have a graduated release, which is the preferred option, then the respondent could be released subject to a supervision order which contains strict conditions. Dr Moyle however considers that the respondent should continue to be subject to a detention order.
- It is important then to examine the matters which the applicant and Dr Moyle consider to be of significance. The factors Dr Moyle considers to be important are essentially the respondent’s hostile attitude, his attitude to treatment, his attitude to women, his high anxiety, his reluctance to explore his sexual offending and his psychopathy.
Efforts by the respondent to address the cause or causes of the offending behaviour including whether he has participated in rehabilitation programs
- Given the fact that the respondent has been in prison for the last 27 years it is important to consider what steps the respondent has taken to address his offending behaviour. At the hearing and in his report Dr Moyle expressed concern as to whether the respondent would comply with treatment strategies. He stated that over the last 3 years of his detention the respondent had been approached to engage in therapeutic activities and the respondent “has to his credit been able to engage in those activities for periods of time, brief periods of time, but then something happens and he impulsively stops and goes his own way and doesn’t go back”. As Dr Moyle places particular emphasis on this, it is important to examine the nature and extent of the respondent’s opposition to therapeutic activities.
- After the order of White J in November 2003, Townsville Correctional Management instituted a management program for the respondent. He saw a counsellor Mr Fraser on a weekly basis and an alcohol and drug counsellor Graham Kennedy. At the end of 2004 he was transferred to the Wolston Correctional Centre to allow him to access further treatment and to enable him to participate in a Sexual Offender Treatment Program (SOTP). At Wolston he had two sessions of assessment for the program but was assessed as unsuitable because of his attitude to disclosure in relation to his own sexual abuse which relates back to his previous participation in a SOTP.
- The previous SOTP was in 1994/5 when the respondent went to the Moreton Correctional Facility to participate in such a treatment program which was a nine month course. Whilst he participated for more than half of the course (26 weeks out of 45 weeks) he did not complete the course. Dr Grant reports that he would not participate in that part of the course which involved group work revealing details of his own sexual abuse to other prisoners. When asked at the hearing why he had not completed the course the respondent stated:
“There were two objective reasons. One was that they didn’t have any qualifications with regard to counselling or any other availability of seeing whether you are under stress or acknowledging that there was problems with you and the second was that there was no confidentiality.”
- When asked why the lack of confidentiality caused problems for him he stated “Those inmates that were present on the course going back and relaying the issue to other inmates that you could be tampered with or what have you”.
- Whilst it is clear that the respondent has not completed a SOTP he has participated in some other treatment. Dr Moyle considered that the respondent:
“Has had quite significant levels of therapy in the last three years. The most significant in my mind being that provided by Mr Fraser over a year and Mr Kennedy over a prolonged period of time. Mr Fardon is able to appreciate the good aspects of therapy and in his reaction to me about the assistance given to him by Eli Skye is able to integrate both the positive aspects of what he gained and the negative aspects of what he disapproved of. This is indeed a positive step and if he can generalise this more he may benefit over a long period of time.”
- Dr Moyle reports that the respondent’s attitude to Corrective Services staff is that he considers that they are all far too young and straight out of university, he doesn’t like the fact they work in pairs as that just means they cover for each other. He is also tired of “a new person asking exactly the same questions but providing nothing in the way of therapy”. He believes that over the last 30 years he has seen 30 different people and they write the same reports based on his file from 30 years ago. The respondent commented to Dr Moyle:
“…but the system doesn’t realise when I am sitting down with some 18 year old kid, I am antisocial, antagonistic, in denial, avoiding, we challenge them yes we do. You are sitting in a course with some 18 year old kid, they are being the self-righteous judgemental holier than thou, badness about drugs and alcohol who asked of you have you ever had a needle in your arm. No. Who are you to say because you don’t know.”
- What then can be said in relation to the issue of the respondent’s efforts to address the causes of his offending behaviour including whether he has participated in rehabilitation programs? Whilst the benefits of a SOTP for the respondent will be discussed later, an objective examination of the evidence of his attitude to rehabilitation indicates that whilst he has participated in some therapeutic activities Dr Moyle’s assessment of him is substantially correct. That is that “he is quite proudly defiant, makes up his own mind and likes to oppose”.
- Despite his reluctance to be involved in programs he does not approve of, the respondent has indicated he would be involved in a counselling program outside the prison environment as part of a supervision order. He does accept that this is an important step in his re-integration. In his evidence at the hearing, Dr Grant highlighted the fact that this individual therapist would need to be an experienced psychiatrist or psychologist who could help with the respondent’s anxiety and stress and assist him with any issues of substance abuse should they arise. Dr Grant stressed that what was needed was clinical observation and support. Dr Moyle who has concerns concedes that:
“He remains unable or unwilling to allow exploration in any depth of his sexual attitudes but started that process with me prodding quite vigorously on this in this interview to a greater extent than he has allowed that exploration to go in the past.”
- Accordingly, whilst I note Dr Moyle’s concerns about whether the respondent would comply with treatment strategies if he were released subject to a supervision order, the evidence does show that the respondent has participated in long term therapy in the past and that he recognises the importance of such therapy in the future. I am not satisfied that the respondent’s failure to complete the SOTP course initially and his reluctance to participate in further SOTP courses within the prison environment indicates an inability to undertake either treatment programs or to enter into a therapeutic relationship.
The respondent’s refusal to participate in the Sexual Offenders Treatment Program.
- Turning to the issue of the respondent’s refusal to participate in the sexual offender treatment program (SOTP) which Dr Moyle considers to be a significant issue.
- Dr Grant gave evidence that there was no need for a sexual offenders program to be provided for the respondent because he had no sexual paraphilia as part of his condition. Dr Grant further advised that the respondent’s objections to taking part in the sexual offenders treatment program on the basis that it was done in groups could be sustained. In his report Dr Grant states:
“In my opinion there is no strong indication for him to undergo a sexual offender treatment program. There is no indication that he has a primary sexual disorder or paraphilia. He has been sexually abused but a sexual offender program is not the appropriate treatment for his own sexual abuse. Individual therapy would be helpful in this regard if Mr Fardon wished to undergo it.”
- This was supported by Dr Nielssen who specifically stated “I did not find that Mr Fardon had a disorder of abnormal sexual interest for which he required specific counselling or treatment”. Furthermore Dr Nielssen stated in relation to the SOTP that there is no scientific evidence that custody based psychological therapy makes any difference in the rate of recidivism for sex offenders. Dr Nielssen further commented that whilst the respondent was described as being in denial about his second offence, the available studies show that there is no difference in the rates of recidivism between those who deny and those who admit their offences.
- Since being transferred to the Wolston Correctional Centre the respondent has had no treatment or consistent counselling of any sort apart from a few weeks of counselling with Eli Sky until she was transferred. Dr Grant considers that nothing more could be done for the respondent within the prison system in terms of treatment.
- Whilst the respondent clearly has a hostile attitude in relation to the SOTP the current evidence does not indicate that the Sexual Offender Treatment Program offered in prison was in fact ever necessary for the respondent as he had no primary sexual disorder. Furthermore there was no evidence that the proposed program was an appropriate rehabilitation program to address such a disorder if it did exist. There was also no evidence that such a program actually decreased the risk of recidivism in any event.
- Accordingly, whilst there is evidence that the respondent is proudly defiant in relation to the program there is no evidence that this will increase his risk of re-offending. If the respondent does not require a sexual offenders treatment program because he does not have the prerequisite condition, then his proud defiance of the program will not in fact increase the risk of his re-offending. It is noted that there is no further appropriate treatment available to the respondent in the prison system.
The respondent’s attitude
- One of Dr Moyle further concerns is the respondent’s hostility and he states: “Indeed he does retain hostile attitudes, negative attitudes towards women, prison officers and the system in general, separating the system into evil and bad and specific individuals as positive and good. They remain positive and good while they do as he wishes.” Dr Moyle is also concerned that the respondent gets anxious or panicky in situations where he feels embarrassed or under threat. Dr Moyle’s concern is that sometimes this anxiety can be a precipitant to violence and states the respondent:
“feels some ambivalence also in attending programs threatening to injure or kill somebody if they approached a subject of his sexuality as part of a treatment program. He is aware of some of his comments, ill advised and probably impulsive as they are, may lead to people wanting to keep him in jail in case he acts on them.”
- Dr Moyle also specifically expressed concern in relation to comments by the respondent that he would kill to get back into jail and that he would take substances, go to a park with an axe handle and see what happened. Dr Moyle states “he seems to impulsively make statements, express hostility and ambivalent compliance and then criticise people for taking his words seriously”.
- However, Dr Nielssen states that when he asked the respondent about these issues he replied that “the quotations attributed to him had been twisted or misrepresented. He said he was trying ‘to express my concerns about being thrown out with out any help’”.
- I also note that, according to Dr Nielssen’s report, these comments were apparently made in 1997. The respondent also states that when he was released in 1988 the parole board had initially deferred his application for 14 months and then they released him with one day’s notice without any preparation, support or assistance.
- Looking at these particular issues of the respondent’s anger and attitude, Dr Grant agrees that the respondent has difficulties with control at times and that he expresses anger quite vehemently in a verbal way. He also agrees that he has some negative opinions about the Corrective Service system but states that such opinions would not be uncommon in long term prisoners.
- The evidence also shows that the respondent was angry with his transfer from Townsville and that he believes he was “shanghaied” to the Wolston Prison. He is also concerned that his security classification has been increased through no action of his but simply due to the system. A Change of Status Document dated 24 December 2003 tendered at the hearing documents that because the court made a decision to detain him indefinitely, his category changed as follows:
“In summary, the delegate considered that prior to the making of the DPSOA Order, the prisoner was allocated a Low classification albeit with some qualification and explanation of the classification being a measure of the prisoner’s manageability within a secure facility. The delegate further noted the Centre recommendation that the prisoner be classified Medium. However in consideration of the uncertainty of the prisoner’s attitude to the indefinite detention and the potential impact that this order might have on his disposition to escape, community risk factors should be afforded greater weight. In view of the extraordinary consideration of the risk that Fardon presents to community safety and the determination of the Court to detain him for an indefinite period, the determination of the classification can only be HIGH.”
- The evidence of Michael Airton was also that the respondent will now have to serve many years in his current medium security classification before any reduction in his classification can be considered. A copy of the respondent’s security classification history was tendered at the hearing and shows that his classification changed to medium on 2 December 2004. This classification means that he cannot be considered for a prison farm until he works his way once again to the low classification he had previously earned. This means that the graduated release, that all the psychiatrists consider the most appropriate for him, is simply not an option under the present system. Having served his time and paid his debt to society the respondent strongly believes he is being unfairly detained.
- Dr Moyle refers to the respondent’s frustration in his report:
“everybody condemning RJ Fardon going back 30 years when I was a monster. I was. I have moderated now. I have adopted a very different process. I have done nothing to justify RJ Fardon over the years as a monster. In the last 10 years coming up and bashing people does not exist”.
Later in the report Dr Moyle refers to the respondent referring to Justice Moynihan’s recommendation that he be sent to a farm, where he states:
“that has not happened, and nothing has changed in the circumstances over the last three years emphasising that within days of the court case there was a flurry of activity to prepare for the Corrective Services response to the court, but the day after the court case that activity is over ‘they forget all about me and wait until the next 12 months is up’”.
Dr Moyle stated that the respondent repeated the same sentiment in several ways with a “considerable sense of anger and disappointment”.
- Against this background therefore it is significant that given the disappointments of the last three years there is no documentation that the respondent has reacted in any violent way. The assessment of Robert Wood, which is annexed to the affidavit of Joel Smith does however set out historical incidents. He states:
“When discussing his treatment and lengthy custodial period of imprisonment, offender Fardon readily became agitated and emotive, culminating in bursts of abusiveness at some points during the interviews, however he would clarify that it was not directed at the assessor, but rather directed at the ‘system’. These reactions have been a consistent feature of this offender’s presentation during his custodial period of imprisonment, and are most widely documented in a Summary of Psychological Contact Report completed on 3 May 2005, that outlined individual intervention conducted since the offender’s arrival at Wolston CC in November 2004.”
- Another important factor is that in his early years in prison the respondent was a violent prisoner but the evidence is that he now fits in within the prison system and there have been no major issues of compliance. Dr Grant reports that from the reports in the Corrective Services file it was clear that the respondent: 
“Was a violent prisoner who dominated his unit in the early years of his imprisonment. He himself reports that his attitude was one of defiance and ‘I don’t give a fuck’. He used to be very rebellious. He made alcohol and used drugs. There were many violent altercations with other prisoners”.
Dr Grant also reports that the respondent stated that he had witnessed some 48 deaths from a variety of causes, including murder and suicide, whilst he has been in prison.
- Whilst I take into account Dr Moyle’s concern about the respondent’s hostile and aggressive attitudes, the evidence shows the respondent has not been breached for any disciplinary offences for 16 years. Dr Grant states: “He now believes that life is not about living in defiance and fighting with others and being in prison”. There are two references in the report of Dr Moyle to recent incidents but interestingly they did not involve any aggressive outburst on his part but simply a walking away or a non involvement. In fact Dr Moyle asked the respondent what he would do in difficult situations in jail and “he says he tries to walk away from situations such as verbal spits”.
- Dr Moyle refers to an incident when the respondent did not turn up for parade in December 2004 and an incident when he was suspended from his work as a welder at the metal fabrication shop. Dr Moyle states the respondent had not previously missed a day of work due to ill health and that his work reports were otherwise excellent. The incident arose when the respondent was defiant in relation to the use of a machine in the workshop which involved him refusing to use a machine when he had not been instructed in its use:
“He looked at the machine to see if there was a manual. He asked the trade’s assistant where the operational manual was and there was none. He said he could not work a dangerous piece of machinery without one and a stand off arose. He acknowledged his militancy but says if he has to work a new machine without ensuring it is safe to do so, he will leave the shop. He was suspended for three weeks.”
Interestingly he was not punished for the incident, he was returned to the job and he has not used the machine since.
- It is also significant that whilst he was in Townsville the respondent had worked his way to a low classification level within the prison system by 1995 and he lived in a village where there was minimal supervision. There were nine huts in the village each with five inmates and they did their own cooking and washing. The Corrective Services officers were not based in the village but some 3-400 metres away. He lived in this village for nine and a half years and the only reason he was transferred was because of the order of White J in November 2003 declaring that he was a serious danger to the community and ordering his continuing detention. Accordingly it was not his behaviour which caused his classification to go from low to high and now to medium but simply the combined effect of the legislation and the various court orders.
- The respondent also completed a number of courses in prison including a horticulture course. He is also a qualified workplace health and safety officer and has a forklift certificate.
- In summary then, despite Dr Moyle’s concerns about the respondent’s hostility and aggression and against a background of disappointed expectations there is no recent prison history of violence. In short there is no evidence that the respondent’s attitude and anger has translated into actual violence even in situations where he has had minimal supervision.
What factors indicate a supervision order is appropriate.
- Can the adequate protection of the community be ensured in the present case by way of a supervision order? In trying to weigh up the negative and positive factors, it is important to remember that it is the adequate protection of the community which is the overall aim of the section not absolute protection. As the Court of Appeal has indicated “The Act does not contemplate that arrangements to prevent such a risk must be “watertight; otherwise orders under 13(5)(b) would never be made”.
- Can society be adequately protected by a supervision order? In trying to determine this question I consider that the following factors are important considerations.
- Of significance is the fact that the respondent has shown particular maturity and self control in recent years. Dr Moyle also acknowledges this and reports: “There have been some positive changes reported in the most recent, comprehensive and very detailed assessment by J Smith on 4 July 2005. Assessments have also suggested in my opinion he reports some degree of insight and disappointment with himself”.
- Particularly determinative of this issue of self control is the fact that the respondent smoked cigarettes for years but decided 9 years ago that he wanted to stop and he has totally ceased smoking. He has not reverted although tobacco dependence is notoriously very difficult to overcome. He has impressively shown great strength of character to remain tobacco free despite the stressors of the last three years which he confided to Dr Nielssen had left him dispirited. He commented that “The candle of hope has been flickering in the breeze”. Dr Nielssen further comments “It is significant that Mr Fardon has been able to give up smoking in an environment in which most people smoke and there are few other pleasurable distractions”.
- Equally impressive is the fact that the respondent has ceased drinking alcohol. Prior to being imprisoned his alcohol use was excessive and he had been convicted of drink driving offences on six or seven occasions. In his early days in prison he would make alcohol but has not done so for the last 15 years.
- The respondent’s drug use, particularly in relation to his offending behaviour, has previously been referred to and in his early days in prison he was able to obtain and use drugs. Despite the fact that drugs are still relatively easily obtainable within the prison system he has not used drugs for the last 15 years. He has been randomly tested for drugs, particularly whilst in Townsville, but has never had a positive sample.
- Dr Grant reports that the respondent has “made a commitment to himself that he will never touch alcohol or illicit drugs in the future. He recognises the influence of alcohol and drug abuse on his life and particularly in regard to his offending behaviour”.
- The fact that he has refrained from the use of all of these substances and the fact that he has insight into his previous use of these substances is important.
- The respondent has also saved over $7,000 whilst in prison, mainly savings from not smoking, and he intends to put this money towards adjusting to the outside world and purchasing those things that are needed. He purchased items such as a television, fan, Playstation and X Box whilst he was in Townsville and these items are stored for him by a lady friend who visits him weekly.
- The respondent believes he would receive support from this friend as well as from a prison ministry he has been involved with.
- Dr Grant reports that the respondent does not wish to die in prison and the last 27 years in jail have had a significant deterrent effect on him.
- Despite concerns from Dr Moyle about negative attitudes the respondent has towards women, the evidence indicates that he has resumed a friendship with a former female school friend and has a supportive relationship with two women from the prison ministry. Indeed the co-ordinator from the prison ministry, who has a degree in social science and 8 years field experience, states in her evidence that she had worked with the respondent since November 2005 and saw him about once a fortnight. She described the relationship as a “Very good, very respectful relationship. I think we’ve got a good working relationship”.
- Dr Grant and Dr Nielssen consider that any risk could be appropriately managed by appropriate supervision orders. Dr Nielssen specifically states “My clinical impression is that Mr Fardon has passed the age that he represents a serious risk to anyone in the community and that he is now ready for release under supervision”.
What does the supervision order need to address?
- On the basis of all the psychiatrists’ evidence the major issues for the respondent would be:
(1)The need to ensure there is no reversion to alcohol or substance abuse;
(2)The need to manage the respondent’s anxiety;
(3)The need for a positive therapeutic relationship;
(4)Support for reintegration into the community particularly when new situations arise; and
(5)The need for supervision.
- The submission of the respondent is essentially that if he was released in a way that occurred in 1988, which is that is he was basically thrown out on the street with one day’s notice, he could be a serious danger to the community but if an appropriate supervision order were to be made then there would be no such risk.
- The proposals in relation to the respondent’s release are set out in the affidavit of the co-ordinator from the prison ministry. It is proposed that the respondent would receive 30 hours intensive support for the first two weeks mainly from the co-ordinator. This level of support would then reduce down over a period of weeks to four hours per week and would then continue until the end of a three month period when the support required would be reviewed. Whilst other people from the organisation would also assist, the co-ordinator confirmed that the majority of the support would be provided by herself and the previous co-ordinator of the organisation. She indicated however that as the respondent had not had any substantial reintegration processes it would be difficult to estimate the length of time he would require support.
- The co-ordinator confirmed that she was committed to assisting the respondent if he was released from custody but that her organisation, which was a preferred supplier to the Department of Corrective Services, would need to obtain special funding to provide this intensive support. She also confirmed that in the short term the plans were for the respondent to go to immediate temporary accommodation at a remote rural property.
- At the property he would also be supported by a person who had experience of prisoners and at the hearing he gave evidence in relation to the support that would be provided in this regard. It was proposed that the respondent would be occupied doing physical work around the property as prisoners had previously successfully assisted on the property in this way. The deponent stated:
“I am happy to be a friend to Robert and interact with him and give him work if he is happy working and gardening and I would be happy for him to stay for some time provided he receives other supervision and he functions in an appropriate manner. I would have to say to him initially that we will revisit whether he is able to continue to stay at … after the first few months.”
- The evidence was that the respondent’s cabin would be located in a remote and rather inaccessible part of the property which was some distance from the main buildings and whilst families did visit the property at times this would either not occur whilst the respondent was there or would be strictly managed. A plan would be put in place to provide support to the respondent over the weekends and at times of the day when the respondent could be vulnerable to anxiety. The co-ordinator stated: 
“…for the first number of weeks to ensure that someone in a supervisory role is available to support him at the property at weekends. I am preparing a roster of suitable people. I have accepted the responsibility of ensuring that that role is fulfilled at all times”.
- Whilst it was initially envisaged that the respondent would be given a mobile phone to keep him in contact with support workers a different strategy would need to be employed given that the property was outside mobile phone range.
- The co-ordinator also stated that plans would also be put in place to secure the respondent more appropriate long term accommodation and to assist him to access employment. As the respondent had been in custody beyond his sentence for more than three years, with little therapeutic intervention, she considered that she would need to implement a relapse prevention program for the respondent. She indicated that her organisation currently assists a number of sexual offenders who have been released from custody to maintain their relapse prevention plans. She would also locate a private psychologist or psychiatrist to treat the respondent.
- The co-ordinator stated that:
“For the first one to two months, following his release, Robert will be one of my main priorities. I will then assess his progress over this time to determine the degree of my further assistance. … will also be central to this support. Together we plan to offer support to Robert in the form of:
- Learning life skills;
- Grocery shopping;
- Attending medical treatment and monitoring his own health;
- Managing any potential anxiety he may have;
- Mechanisms to prevent any relapses of substance abuse;
- Mechanisms to prevent any reoffending;
- Complying with any orders of a supervision order as imposed by the court;
- Assistance in maintaining housing and rebuilding his life in the community.
Please note, as stated above, that to provide the full level of support Robert will require it will be necessary to receive additional funding.”
- I note that all the psychiatrists are aware of the proposal. The evidence of Dr Grant was that whilst he supported a gradual reintegration into the community if such a graduated reintegration was not possible then he considered the respondent would require “very intensive support and supervision and help in coping with that sudden release from prison”. Specifically in relation to the plan proposed Dr Grant stated:
“I think it would be quite helpful if he was in a relatively remote non-stressful environment that’s not particularly over-stimulating, where he can gradually become used to having more freedom and more mobility and gradually interact with society and learn how to cope with the everyday requirements of living as a free person. He would require a lot of individual attention for some time but that could be eased off as he got more confident”.
- Dr Grant indicated that the respondent’s primary problem is institutionalisation and if he was released into the community, the way in which he is reintroduced into the community is important and he would require considerable assistance particularly due to his level of anxiety.
- Dr Grant noted that the respondent himself considered that supervision was important and indeed he was seeking supervision.
- Dr Grant indicated that the draft conditions he had been shown and the plans that had been made would be appropriate. He considered that the remote location proposed would be good and that it would be important that the respondent would be given more freedom and mobility gradually. He did indicate however that a lot of individual attention would be required at the first instance. The respondent would need closely supervised independent support from qualified social workers or community workers. Dr Grant stated that it did not matter whether these support workers had high academic qualifications but more importantly they needed to have good support skills.
- Dr Grant considered that the respondent would also need specific counselling to ensure he remained abstinent from drugs and alcohol and that he would benefit from an individual therapist who was familiar with the needs of discharged long term prisoners. He also considered that he would need social work support in regard to accommodation, finances and general coping with society. Dr Grant considered that it was important that the respondent received social support as well as clinical observation and support.
Can the risk to the community be managed by a supervision order?
- All of the psychiatrists consider that the best way to manage the risk would be if the respondent was slowly reintegrated into the community. The evidence is however that there have been no steps taken towards gradual reintegration over the last 3 years. The evidence is that under the current systems this is not likely to occur in the immediate future.
- The evidence of Dr Grant and Dr Nielssen is that the risk could still be appropriately managed if he was subject to a supervision order with appropriate conditions. Greater protection may be afforded by way of a graduated release but if adequate protection can still be ensured by way of a supervision order then that is all that is required to meet the requirements of the section.
The need for supervision
- It should be noted that s 20 of the Act contains provisions whereby if a Corrective Services Officer reasonably suspects that a released prisoner is likely to contravene a condition of the supervision order then a warrant may be applied for and the released prisoner can be brought before the court in relation to the contravention. Accordingly, if there should be a breach of any condition then a warrant may issue and if the court is satisfied that the released prisoner has contravened or is likely to contravene the supervision order then the court may rescind the supervision order and make a continuing detention order.
- In relation to the issue of the extent of supervision the recent decision by the Court of Appeal in AG for the State of Qld v Darren Anthony Francis in relation to the Act and the issue of supervision in particular is of assistance:
“It must be borne in mind that any supervision order made by the court under the Act must contain, by virtue of s 16(2) (f) contain a condition for supervision of the prisoner while on supervised release. The Act thus assumes that supervision will be available. The court should not conclude either that it will not be made available or will not be made sufficiently available in the absence of clear evidence to that effect and an explanation as to why its provision is regarded as unreasonable or impracticable. There was no reason to conclude that any necessary supervision by the department could not, or would not, be made available.”
- In coming to a determination on this matter I am persuaded ultimately by a number of factors which can be conveniently summarised as follows:
(1)The respondent has an antisocial personality disorder.
(2)With antisocial personality disorders there is a lessening of antisocial and violent behaviours as a person gets older.
(3)The respondent does not currently have a psychiatric illness or any symptoms of a mental illness.
(4)The respondent does not have a sexual disorder which requires he undertake a sexual offenders treatment program.
(5)Studies indicate that offenders released at an older age were less likely to re commit sexual offences.
(6)The 1978 offences occurred under the influence of substances and alcohol.
(7)The 1988 offences occurred under the influence of alcohol and heroin.
(8)The respondent has been drug and alcohol free for the past 15 years.
(9)The respondent gave up smoking 9 years ago and has not resumed.
(10)The respondent has completed a number of courses in prison including a workplace health and safety course and he holds a forklift certificate.
(11)The respondent has been a hard worker in prison and has had a good attendance record at work.
(12)The respondent lived in a low security village with minimal supervision within the prison for 9 and a half years.
(13)The respondent has handled the disappointments of the last 3 years in a mature fashion.
(14)The respondent now has a positive relationship with several women.
(15)The respondent has not been breached for a disciplinary offence within the prison system for the last 16 years.
(16)The respondent recognises the importance of treatment and has agreed to treatment on release.
(17)The respondent’s anxiety when faced with new situations can be managed by way of intensive support on release.
(18)The respondent recognises the importance of supervision and has requested supervision.
(19)All supervision orders must contain a condition for supervision.
(20)If a Corrective Services Officer reasonably suspects that a released prisoner is likely to contravene a condition of the supervision order then a warrant may be applied for and the released prisoner can be brought before the court in relation to the contravention.
(21)If the court is satisfied that the released prisoner has contravened or is likely to contravene the supervision order the court may rescind the supervision order.
- Recent Queensland decisions have indicated that given the intrusions of the Act on the liberty of the subject are exceptional, if the supervision of the prisoner is apt to ensure the adequate protection of the community then an order for supervised release should be preferred to a continuing detention order.
- At the hearing various draft supervision orders were considered all of which contained a number of conditions which were considered to be necessary if a supervision order were to be made.
- Having considered the various draft supervision orders I am satisfied that the adequate protection of the community can be ensured if the respondent is subject to a supervision order which contains conditions that provide both appropriate supervision and appropriate support.
- However it is important that the conditions include detailed proposals for the respondent to actually receive intensive support during the first few weeks of his release which all of the psychiatrists identify as a very vulnerable time for the respondent given his institutionalisation and his high anxiety. He will also need to actually receive counselling and reintegration support. Appropriate supervision will also be particularly important to ensure that the respondent does not resume the use of alcohol or drugs which all of the psychiatrists identify as a risk factor.
- This can be managed by a supervision order which contains the conditions generally set out by the applicant in their draft order together with the addition of some further conditions which I propose to add in accordance with s 16(2). These further conditions will require that the respondent specifically receive stated support and supervision in the first three months. The supervision order should therefore set out that he will attend specific programs and that he will receive specific treatment.
- Whilst I note that the respondent submitted that some of the applicant’s proposed conditions should be amended further to take out a requirement that the respondent should not be prohibited from visiting premises licensed to supply or serve alcohol I am satisfied that this condition is appropriate if the words “without the consent of a Corrective Services Officer” are added. I would also add the additional clause suggested by the respondent. I note that it is accepted that the suitable period for such an order would be 10 years.
- Consequently the conditions would be generally in the following terms and state that for 10 years:
The respondent must:
- be under the supervision of a corrective services officer (‘the supervising corrective services officer’) for the duration of this order;
- report to the supervising corrective services officer at the Department of Corrective Services Area Office closest to his place of residence between 9am and 4 pm within 24 hours of his release and therein to advise the officer of the respondent’s current name and address;
- reside at all times at a place within the State of Queensland that has received prior approval from a corrective services officer by way of a suitability assessment; (in determining suitability the officer is to have regard to the respondent’s need for drug and alcohol counselling support services, and other relevant factors, including but not limited to proximity to recreational areas, and vulnerable members of the community).
- report to and receive visits from the supervising corrective services officer at such frequency as determined necessary by the supervising corrective services officer;
- notify the supervising corrective services officer of every change of the prisoner’s name at least seven business days before the change occurs;
- notify the supervising corrective services officer of the nature of his employment, the hours of work each day, the name of his employer and the address of the premises where he is employed, such employment not to involve working with children;
- notify the supervising corrective services officer of every change of employment at least two business days before the change occurs;
- notify the supervising corrective services officer of every change of the respondent’s place of residence at least seven business days before the change occurs;
- not leave or stay out of the State of Queensland without the written permission of the supervising corrective services officer;
- not commit any offence of a sexual or violent nature during the period of this Order;
- not contact the victims of his offences;
- abstain from violations of the law;
- reside at a place within the State of Queensland as approved by a corrective services officer by way of a suitability assessment;
- abstain from the consumption of alcohol for the duration of this Order;
- abstain from illicit drugs for the duration of this Order;
- take prescribed drugs only as directed by a medical practitioner;
- submit to alcohol and drug testing as directed by a corrective services officer, the expense of which is to be met by the Department of Corrective Services;
- not visit premises licensed to supply or serve alcohol without the consent of the supervising corrective services officer;
- attend a psychiatrist who has been approved by the supervising corrective services officer at a frequency and duration which shall be recommended by the treating psychiatrist, the expense of which is to be met by the Department of Corrective Services;
- permit any treating psychiatrist, psychologist or counsellor to disclose details of medical treatment and opinions relating to his level or risk of re-offending and compliance with this Order to the Department of Corrective Services if such request is made in writing for the purposes of updating or amending the supervision order and/or ensuring compliance with this Order;
- attend any program, course, psychologist or counsellor, in a group or individual capacity, as directed by the treating psychiatrist and the supervising corrective services officer, the expense of which is to be met by the Department of Corrective Services;
- agree to undergo medical testing or treatment (including the testing of testosterone levels by an endocrinologist) as deemed necessary by the treating psychiatrist and supervising corrective services officer, and permit the release of the results and details of the testing to the Department of Corrective Services, if such a request is made in writing for the purposes of updating or amending the supervision order, the expense of which is to be met by the Department of Corrective Services;
- obey the lawful and reasonable directions of the supervising corrective services officer;
- respond truthfully to enquiries by the supervising corrective services officer about his whereabouts and movements generally;
- not join, affiliate with, attend on the premises of or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation;
- not visit public parks without prior written permission from the supervising corrective services officer;
- not undertake unsupervised care of children;
- not establish and maintain contact with children under 16 years of age;
- not access pornographic images containing photographs or images of children on a computer or on the Internet or in any other format;
- not go unsupervised to a place that houses children, intellectually disabled persons, mentally ill persons or persons with drug misuse difficulties.
- The extra conditions which I propose to impose are essentially the requirements that Dr Grant considered to be vital, which are generally reflected in the plans sets out in paragraph 6 of the affidavit of witness A, namely:
- that the respondent receive reintegration counselling from an individual therapist such as an experienced psychologist, psychiatrist, or social worker who is familiar with the needs of discharged long term prisoners and who could assist with any anxiety symptoms which occur and develop strategies to deal stress that he experiences.
- that the respondent receive specific counselling in relation remaining abstinent from alcohol and drugs.
- that the respondent receive intensive support for the first three months and in particular that he receive 30 hours per week support for the first two weeks and that this support gradually reduce over the three months to four hours per week.
- The draft supervision order will therefore need to be amended particularly at paragraphs (xix) and (xxi) to take these extra conditions into account. I consider that these extra conditions are vital for the protection of the community and that these must be part of the supervision order.
- These extra conditions cannot be implemented immediately as additional funding is required.
- Before the supervision order can be finalised, the condition set out in paragraph (iii) of the draft supervision order must be complied with. This condition states that the place at which the respondent resides must receive prior approval from a Corrective Services Officer by way of a suitability assessment and that in determining suitability the officer is to have regard to the respondent’s need for drug and alcohol counselling support services, and other relevant factors, including but not limited to proximity to recreational areas and vulnerable members of the community.
- Until the extra conditions are included in the supervision order and the suitability assessment occurs, the supervision order cannot be finalised.
- Accordingly the final determination of the application for review is adjourned to allow for the finalisation of the terms of the supervision order.
- I direct that the application be re-listed before me within 30 days for the finalisation of the review and for the making of final orders.
 See Attorney-General (Qld) v Fardon  QSC 379 at 102
 (2004) 210 ALR 50
 See Attorney-General for the State of Queensland v Fardon  QSC 137 at  - 
 Doc 120 – Affidavit of Dr Grant sworn 2 May 2006 (DAG3) at p 12
 Attorney-General (Qld) v Fardon  QSC 137 at  - 
 Doc 120 – Affidavit of Dr Grant sworn 2 May 2006 (DAG3) at p 28
 Doc 119 – Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 37
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 36
 Affidavit of Dr Nielssen sworn 9 July 2006 (ON3) at p 9
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 36
 Transcript of Proceedings, page 32, line 31
 Doc 120 - Affidavit of Dr Grant sworn 2 May 2006 (DAG3) at p 30
 Doc 119 – Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 47
 Affidavit of Dr Nielssen sworn 9 July 2006 (ON3) at p 9
 Transcript of Proceedings, p 38, line 49
 Doc 121 - Affidavit of Joel Smith sworn 5 May 2006 (JBS3) at p 24
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 at (RJM3) p 11
 Doc 120 – Affidavit of Dr Grant sworn 2 May 2006 (DAG3) at p 33
 Doc 120 – Affidavit of Dr Grant sworn 2 May 2006 (DAG3) at p 26
 Affidavit of Dr Nielssen sworn 9 July 2006 (ON2) at p 4
 Affidavit of Dr Nielssen sworn 9 July 2006 (ON2) at p 4
 Hanson, R.K. and Bussiere, M.T. (1998). Predicting Relapse: A Meta-Analysis of Sexual Offender Recidvism Studies. 66 Journal of Consulating and Clinical Psychology 348-362; Trowbridge, B. (2004). Age and Recidivism: How Accurate are our Predictions. 18 Washington Criminal Defense, 1-20; Barbaree, H.E., Blanchard, R.. & Langton, C.M. (2002). The Development of Sexual Aggression through the Life Span, Law and Mental Health Program, Centre for Addiction and Mental Health, University of Toronto, Toronto, Ontario
 Hanson, R.K. & Morton Bourgon, K. (2004). Predictors of Sexual Recidivism: An Updated Meta-Analysis, (User Report 2004-02), Ottawa: Public Safety and Emergency Preparedness Canada.
 Barbaree, H.E., Blanchard, R.. & Langton, C.M. (2002). The Development of Sexual Aggression through the Life Span, Law and Mental Health Program, Centre for Addiction and Mental Health, University of Toronto, Toronto, Ontario
 Transcript of Proceedings, page 41, line 8
 Attorney-General (Qld) v Fardon  QSC 137 at 
 (2004) 210 ALR 50 at 
 See Attorney-General v Francis  QSC 381 at 
  QCA 324 at 
 Transcript of Proceedings, page 35, line 9
 Transcript of Proceedings, page 81, line 43
 Transcript of Proceedings, page 81, line 53
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 at (RJM3) p 35
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 25
 Transcript of Proceedings, page 35, line 21
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 9
 Doc 120 – Affidavit of Dr Grant sworn 2 May 2006 (DAG3) at p 31
 Affidavit of Dr Nielssen sworn 9 July 2006 (ON2) at page 5
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 8
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 9
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 15
 Affidavit of Dr Nielssen sworn 9 July 2006 (ON3) at p 3
 Exhibit 8
 Security Classification History Exhibit 7
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 24
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 19
 Doc 121 – Affidavit of Joel Smith sworn 5 May 2006 (JBS3) at p 19
 Doc 120 – Affidavit of Dr Grant sworn 2 May 2006 (DAG3) at p 19
 Doc 120 – Affidavit of Dr Grant sworn 2 May 2006 (DAG3) at p 20
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 23
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 18
 Transcript of Proceedings, page 82
 See A-G (Qld) v Francis  QCA 324 at 
 Doc 119 - Affidavit of Dr Moyle sworn 3 May 2006 (RJM3) at p 15
 Affidavit of Dr Nielssen sworn 9 July 2006 (ON2) at p 2
 Affidavit of Dr Nielssen sworn 9 July 2006 (ON2) at p 5
 Doc 120 – Affidavit of Dr Grant sworn 2 May 2006 (DAG3) at p 15
 An Order was made removing the identity of the social worker from the Affidavit and sealing the name in an envelope only to be opened by Order of a judge. This witness is known as witness A.
 Transcript of Proceedings, page 126, line 35-36
 Affidavit of Dr Nielssen sworn 9 July 2006 (ON2) at page 5
 Witness A Affidavit sworn 7 July 2006
 At the hearing an Order was made removing the identity of this witness and sealing the name in an envelope only to be opened by Order of a judge. This witness is known as witness B.
 Witness A Affidavit at para 15
 Witness A Affidavit at para 14
 Transcript of Proceedings, page 5, line 22
 Transcript of Proceedings, page 5, line 34
 Exhibit 1
  QCA 324
 at para 37
 Exhibits 1, 9, 12, 13
 Exhibit 13 (as amended)
 Exhibit 12, clause (u)
- Published Case Name:
Attorney-General for the State of Queensland v Fardon
- Shortened Case Name:
Attorney-General v Fardon
 QSC 275
27 Sep 2006
|Event||Citation or File||Date||Notes|
|Primary Judgment||SC No 5346 of 2003 (no citation)||27 Jun 2003||Attorney-General applied for interim detention order under s 8(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003; defendant contended that s 8 of the Act was void as a result of incompatibility with Chapter III of the Constitution; interim detention order made and constitutional challenge reserved: Muir J|
|Primary Judgment|| QSC 200||09 Jul 2003||Determination of defendant's constitutional challenge heard on 27 June 2003; challenge dismissed: Muir J|
|Primary Judgment|| QSC 331||02 Oct 2003||Attorney-General applied for interim detention order under s 8(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 pending final hearing; interim detention order made: Atkinson J|
|Primary Judgment|| QSC 379||06 Nov 2003||Substantive hearing of Attorney-General's application for continuing detention order pursuant to Dangerous Prisoners (Sexual Offenders) Act 2003; continuing detention order made: White J|
|Primary Judgment|| QSC 137||11 May 2005||Attorney-General applied for review of continuing detention order pursuant to s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003; continuing detention order maintained: Moynihan SJA|
|Primary Judgment|| QSC 5||27 Jan 2006||Defendant applied for declarations that annual reviews pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 were required by certain dates and also sought an order that the continuing detention order be rescinded; application dismissed: Philippides J|
|Primary Judgment|| QSC 275||27 Sep 2006||Attorney-General applied for review of continuing detention order pursuant to s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003; supervision order proposed and application re-listed for finalisation within 30 days: P Lyons J|
|Primary Judgment|| QSC 336||07 Nov 2006||On the resumed hearing of the Attorney-General's application pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003; continuing detention order made by White J on 6 November 2003 rescinded and supervision order imposed: P Lyons J|
|Primary Judgment|| QSC 299||19 Oct 2007||Attorney-General applied to amend, or alternatively rescind, the supervision order imposed by P Lyons J on 7 November 2006; supervision order amended: Wilson J|
|Primary Judgment|| QSC 18||16 Feb 2011||Defendant applied for orders pursuant to s 21(4) of the Dangerous Prisoners (Sexual Offenders) Act 2003 seeking dismissal of a contravention application brought against him, or alternatively for an order that he be released pending determination of that application; application dismissed: A Lyons J|
|Primary Judgment|| QSC 128||20 May 2011||Attorney-General applied for orders pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 that defendant be detained in custody for an indefinite term of care: ordered that defendant be released from custody subject to a supervision order: Dick A/J|
|Primary Judgment|| QSC 12||13 Feb 2013||Attorney-General applied for review pursuant to s 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 of continuing detention order imposed by Court of Appeal on 1 July 2011; continuing detention order made on 1 July 2011 rescinded and supervision order imposed: Mullins J|
|Primary Judgment|| QSC 264||27 Sep 2013||Attorney-General applied for annual review pursuant to s 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 that defendant remain subject to continuing detention order made on 1 July 2011 in  QCA 155; proposed that detention order be rescinded and supervision order imposed: P Lyons J|
|Primary Judgment|| QSC 276||04 Oct 2013||Attorney-General applied for a stay of the orders proposed in  QSC 264 pending determination of a proposed appeal to the Court of Appeal; application dismissed: P Lyons J|
|Primary Judgment|| QSC 221||03 Sep 2014||Defendant applied to set aside a warrant issued pursuant to s 20 of the Dangerous Prisoners (Sexual Offenders) Act 2003; application dismissed: PD McMurdo J|
|Primary Judgment|| QSC 20||10 Feb 2015||Defendant applied for costs of the hearing before PD McMurdo J on 3 September 2014 and 16 September 2014; Attorney-General ordered to pay the defendant's costs of and incidental to the application under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003: P Lyons J|
|Primary Judgment|| QSC 193  36 QLR||27 Aug 2018||Attorney General applied to set a date for the hearing of an application for a further supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003; application dismissed: Jackson J|
|Primary Judgment|| QSC 2  4 QLR||09 Jan 2019||Attorney-General applied for an order that defendant be subject to a further supervision order for five years pursuant to s 19B and s 19C of the Dangerous Prisoners (Sexual Offenders) Act 2003; application dismissed: Bowskill J|
|Appeal Determined (QCA)|| QCA 155||01 Jul 2011||Attorney-General appealed against orders of  QSC 128; appeal allowed, order of 20 May 2011 set aside and order made that defendant be detained in custody for an definite term for care, control or treatment: de Jersey CJ, Fraser JA and Mullins J|
|Appeal Determined (QCA)|| QCA 299  42 QLR||10 Oct 2013||Attorney-General applied for a stay of the orders made by P Lyons J in  QSC 264 pending appeal; stay granted pending determination of appeal: Morrison JA|
|Appeal Determined (QCA)|| QCA 416||23 Sep 2003||Defendant appealed against  QSC 200; whether Dangerous Prisoners (Sexual Offenders) Act 2003 fell within legislative competence of Queensland Parliament; defendant's appeal dismissed: de Jersey CJ, M McMurdo P and Williams JA|
|Appeal Determined (QCA)|| QCA 512||04 Dec 2006||Attorney-General appealed against  QSC 336; whether primary judge erred in releasing defendant subject to supervision order; appeal dismissed: M McMurdo P, WIlliams JA and White J|
|Appeal Determined (QCA)|| QCA 111||03 Jun 2011||Attorney-General applied for a stay pending appeal against the orders made in  QSC 128; application granted and stay imposed: Chesterman JA|
|Appeal Determined (QCA)|| QCA 16||14 Feb 2013||Attorney-General applied for a stay pending appeal of the orders made in  QSC 12; application granted and stay imposed: Muir JA|
|Appeal Determined (QCA)|| QCA 64||28 Mar 2013||Attorney-General appealed against  QSC 12; whether primary judge erred in setting aside continuing detention order; appeal allowed, orders below set aside and matter remitted for re-hearing: Muir and Gotterson JJA and Atkinson J|
|Appeal Determined (QCA)|| QCA 365 (2014) 306 ALR 300;  2 Qd R 532||06 Dec 2013||Attorney-General appealed against  QSC 264; defendant filed a notice of contention and Attorney-General applied for a statement of case for opinion: appeal dismissed and declaration that ss 3 and 6 of the Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 are invalid: Holmes, Muir and Fraser JJA|
|Appeal Determined (QCA)|| QCA 251  2 Qd R 487||03 Oct 2018||Attorney-General appealed against  QSC 251; appeal allowed, leave for Attorney-General to adduce further evidence granted, trial judge ordered to hear application for further supervision order and supervision order extended: Holmes CJ, Gotterson JA and Henry J|
|HCA Interlocutory Judgment|| HCATrans 488||20 Nov 2003||Defendant applied for expedition of his application for special leave to appeal against  QCA 416; application granted: Callinan J|
|Special Leave Granted (HCA)|| HCATrans 533||12 Dec 2003||Defendant applied for special leave to appeal against  QCA 416; special leave granted: Gummow and Kirby JJ|
|HCA Judgment||(2004) 223 CLR 575 (2004) 210 ALR 50 (2004) 78 ALJR 1519||01 Oct 2004||Defendant granted special leave to appeal against  QCA 416; appeal dismissed: Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ|