Attorney-General v Fisher[2007] QSC 341

SUPREME COURT OF QUEENSLAND

1. MACKENZIE J:  This is an application under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) for an order for continuing detention or, alternatively, a supervision order.

Context of application

2. The respondent pleaded guilty in the Ipswich District Court on 13 October 2004 to offences of rape, assault occasioning bodily and common assault on dates unknown between 1 January 2003 and 8 February 2003, an unlawful and indecent assault committed on 8 February 2003 and robbery with personal violence committed on 27 September 2003. He was sentenced to four and a half years imprisonment for rape and robbery with personal violence, 18 months for the assault occasioning bodily harm and the common assault and 12 months imprisonment for the unlawful and indecent assault.

3. At the time of these offences he had a long criminal history for offences of dishonesty and public order offences, but none of a sexual nature. In that respect, the present case is unlike most that fall for determination under the Dangerous Prisoners (Sexual Offenders) Act.  It is also a case where there is only one offence that fits the category of a serious sexual offence, the rape, which was digital penetration of a girl of two years of age.  She suffered a complete tear to the posterior fourchette extending towards her anus.  There were other signs consistent with digital penetration of her vagina. 

4. The assaults occasioning bodily harm were committed in the same period as the rape and were evidenced by what appeared to be bite marks and other evidence of trauma visible on the children of the respondent’s de facto wife. There was no allegation in the charges that these assaults had any sexual connotations.

5. The unlawful and indecent assault occurred in an incident when the complainant and a friend were harassed near a night-club by the accused and friends of his, ostensibly to persuade them to give them cigarettes. During the course of the episode, the respondent made a lewd remark and gesture. The complainant walked away to take a phone call and while she was on the phone, the respondent approached her, “placed” his hand on her right breast and squeezed it. While the complainant was no doubt distressed by the incident, the level of violence was not such as to qualify it as a serious sexual offence for the purposes of the Act.

6. The robbery, which occurred while the respondent was on bail for the other offences, was not alleged to have any sexual content, although involving a serious degree of violence.

Admissibility of experts’ reports

7. Objection was taken at the outset of the hearing to the admission of all reports of the psychiatrists who had examined the respondent, on the basis that each of the reports included a reference to allegations made by the respondent’s de facto wife of domestic violence and controlling behaviour on the part of the respondent in the period surrounding the rape. These allegations were sourced to a QP9 Form on the prosecution brief. No charges were laid in respect of any of these allegations.

8. Mr Fenton relied on Steffen v Ruban [1966] 2 NSWLR 623 and Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 in support of rejection of the reports.  I was assisted by the passage in Ipp J’s reasons (with which Malcolm CJ agreed) in Pownall at 374-375 in ruling on that question.  Short ex tempore reasons were given before the matter proceeded further.  The effect of the ruling was that it did not seem unambiguous, on the face of the psychiatrists’ opinions, whether, and if so, to what extent, the account of the unproven surrounding events had influenced their conclusions.  The psychiatrists could be examined and cross-examined with a view to ascertaining whether the extraneous material had been taken into account and to confirm what their opinions would be if the inadmissible material was excluded from consideration.  The matter then proceeded on that basis.

9. Dr James said that he was unsure whether he had seen the information about the domestic violence allegations in the original material but said that he had seen it referred to in the other psychiatrists’ reports. He was asked, on the assumption that the allegation that there was violence was inaccurate, whether that account had been a significant factor in reaching his final opinion. He said that it was not and the fact that it was inaccurate would not change his opinion.

10. Under cross-examination he agreed that he had referred to the police investigation revealing that the domestic relationship had been violent. He agreed that it had significance as evidence of a propensity to commit violent acts and was one of the many things that went into the mix to form his final opinion. However, in reply to a question whether, if the domestic violence had not occurred, his opinion might have been different, he said he thought not. He would have been more influenced by the evidence that the child had injuries of variable ages, which suggested that the injury inflicted in the serious sexual assault was not a single impulsive act. He also had knowledge of the other violent offences committed by the respondent.

11. Dr Beech was not one of the court appointed psychiatrists but had examined the respondent for the preliminary application. He said that he was aware of the domestic violence allegation. On the assumption that it was not correct, but that the evidence of the injuries to the child could be taken into account, it did not change his opinion. In cross-examination he agreed that the information had an influence on his opinion but said that if it were to be disregarded, his ultimate conclusion would not be different as to the level of risk.

12. Dr Lawrence referred to the court brief revealing that the mother had said that the offender had been violent in the relationship with her and had taken over the care of the children to the exclusion of her. She said that this information gave some support to the propensity for violent behaviour displayed in the other attacks and was therefore in the mix when her opinion was formed. She was asked to assume that the relationship was not violent. She said that that would not affect her opinion as to the level of risk of re-offending. She said in any event she had questioned the respondent about the allegation and he denied it. The information about domestic violence made no difference because there was, in any event, the objective evidence of the injuries to the child.

13. The issues of concern in Steffen and in Pownall arose on appeal when it was impossible to disentangle the effect of inadmissible evidence from what may have been admissible.  Having regard to the tenor of the evidence of each of the psychiatrists, the reports should be admitted subject to recognition that the information concerning domestic violence is not available to be taken into account.

Utility of actuarial instruments

14. Each of the psychiatrists was cross-examined about a 2007 article in the British Journal of Psychiatry entitled “Precision of actuarial risk assessment instruments”. The conclusion reached in the article was that such instruments cannot be used to estimate an individual’s risk for future violence with any degree of certainty and should be used with great caution or not at all. The article concentrated on the Violence Risk Appraisal Guide (VRAG) and Static-99. All the psychiatrists agreed that the instruments produced statistical estimates, derived from study of groups of offenders, and were necessarily, by themselves, an imprecise predictor of the future behaviour of any individual in that category. But none of them relied only on those instruments in reaching their risk assessment. Their methodology involved personalised assessment of the respondent in addition to application of the results of VRAG, Static-99 and the Sex Offenders Appraisal Guide (SORAG), and in the case of Dr Beech and Dr Lawrence, HCR-20, which combined static and dynamic elements for the purpose of assessing future risk.

15. Dr James had made the point in his report that there was a widespread consensus that a combination of actuarial and dynamic factors predicts recidivism more reliably than either factor in isolation. Dynamic assessment attempted to use variable factors which appear to distinguish individuals, particularly in relation to offending. Factors individual to an offender that appeared to contribute to his criminal behaviour, such as developmental, environmental, neurobiological and intra-psychic factors were used to explain and describe it. The aim was to identify treatment goals more specific to the offender and the method of treatment likely to reduce future risk.

16. Dr James’ evidence was that the findings in the article were very much in line with his own general impression of the limitations of using actuarial instruments alone. If the instruments were incorporated with careful enquiry and application of clinical wisdom, they were of some value. Dr Beech also emphasised the imprecision of the tests used alone as a predictor of individual behaviour. In assessing risk, examination of the individual person was necessary in conjunction with any actuarial tests used. Dr Lawrence said that her approach was a structured clinical judgment, which attempted to combine actuarial assessment with clinical factors applying to the individual. The actuarial assessment, in her methodology, was somewhat subsidiary to the clinical factors. She acknowledged that probabilities derived from actuarial instruments were broad and that there had been doubt cast by some on the validity of predictions based only on those assessments.

17. The proposition in the article upon which the cross-examination was based is not novel in applications of this kind. Because of the methodology used by each of the psychiatrists, the imprecision inherent in applying actuarial instruments to determine the degree of risk of one individual does not materially detract from the weight of the opinions of the psychiatrists.

Criteria for making a Division 3 order

18. The foundation of the jurisdiction under the Dangerous Prisoners (Sexual Offenders) Act is that the prisoner is serving a period of imprisonment for a serious sexual offence, either solely or in conjunction with other offences (s 5).  The term “serious sexual offence” means an offence of a sexual nature:

1. involving violence; or

2. against children.

If at the preliminary hearing a court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order, the matter proceeds to the hearing of an application for either a continuing detention order or a supervision order (s 8(1); Schedule – Definition of “division 3 order”).  If the court is satisfied, on an application for a division 3 order that the prisoner is a serious danger to the community (s 13(1)), the court may make a continuing detention order or a supervision order (s 13(5)).  The prisoner is a serious danger to the community if there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody or, if released from custody, without a supervision order being made (s 13(2)).  The onus of proving that the prisoner is a serious danger to the community lies on the Attorney-General        (s 13(7)).  The court may decide it is satisfied as required under s 13(1) only if satisfied:

1. by acceptable, cogent evidence; and

2. to a high degree of probability;

that the evidence is of sufficient weight to justify the decision (s 13(3)).  In deciding whether to make one of those orders, the paramount consideration is the need to ensure adequate protection of the community (s 13(6)). 

Evidence of the psychiatrists

19. Doctors Beech and Lawrence assessed the respondent as being of borderline to low average intelligence.  Doctor James thought he was of low intelligence.  There was a history of limited achievement in the educational system, which becomes relevant in relation to some of the respondent’s submissions as to the form of a supervision order.  Each of the psychiatrists was of opinion that the respondent suffered from anti-social personality disorder but fell short of the threshold for psychopathy.  According to Dr James psychopathy carried a lesser likelihood of improvement over time than anti-social personality disorder.  None of the psychiatrists concluded that the respondent was suffering from any diagnosable mental illness.           

20. All of the witnesses commented on the respondent’s concrete thinking and apparently limited ability to think abstractly. All of them perceived a defensiveness in relation to his offending behaviour. They variously mentioned his minimised acceptance of the nature of the offending, his limited insight into his offending, self-justification and underestimation of the part that substance abuse appeared to have played in his offending generally.

21. All of the witnesses noted that he had apparently genuinely participated in programs designed to address his offending behaviour while in prison. They all noted that he had achieved some benefit, albeit somewhat limited, from them. It was also noted that his general behaviour had improved over the period he was imprisoned.

22. In the “General Conclusions” part of his report, Dr James said that, although the respondent appeared to have undergone some improvement in terms of his capacity for impulse control, (perhaps through a combination of biological maturation and the disciplined environment of the prison), the results of the assessments suggested that he should be considered at high risk of re-offending were he to be released without further exposure to therapeutic programs and further and considerable assistance with his devising a plan for himself following discharge. He repeated that despite what appeared to have been the respondent’s best efforts in the Sexual Offenders Treatment Program, he had apparently been able to make only modest progress in changing his perception in any significant way.

23. Doctor Lawrence said that, given his anti-social personality disorder and his rating on the psychopathy scale, even if he did not display the full range of characteristics of a psychopath, his absence of supportive family or other ties and the lack of feasibility in his current plans, meant his risk of future offending was high. Because of factors relating to his intellect and culture, she could not be confident of obtaining a reliable understanding of his sexual function or fantasies. Completion of HISOP did not make her confident that he had gained such understanding, or developed alternative strategies which would make her feel confident that he would not re-offend in the future. She also observed that the risk of re-offending may well be more in the direction of other anti-social potentially violent behaviour rather than necessarily sexual. Nevertheless, sexual re-offending was likely.

24. She said that she believed that the offending by the respondent was likely to be opportunistic, especially where small children were concerned. While he was not a person who groomed children, the opportunity afforded by developing friendships or relationships with parents with young children would provide those opportunities.

25. Doctor Beech said that in his opinion the respondent should be seen as having at least a moderately high and probably high risk of re-offending. The basis for this was that he was an impulsive young man, prone to aggression or violence with a long history of offending behaviour who still had limited insight into his offending and who lacked feasible plans for the future.

Should a Division 3 order be made?

26. The offence of rape for which the respondent is serving a sentence of imprisonment was a “serious sexual offence”. It involved violence against a child. The violence was evidenced by the injuries suffered by the child. The next issue is whether the respondent is a serious danger to the community. The issue, according to s 13(2), is whether there is an unacceptable risk that the prisoner will commit a sexual offence if released from custody or, if released from custody without a supervision order being made. The issue is somewhat complicated in this case by the generally violent disposition that the respondent has demonstrated. The robbery for which he was convicted was a violent offence also. Also, the actuarial instruments are concerned primarily with violence of which sexual violence is a sub-set.

27. However, it seems to be clear, in my view, from the evidence of the psychiatrists that there is a concern that the respondent has not benefited to the full extent from programs which would enable him to confront and understand that serious sexual offences ought not to be committed. Until that degree of insight is obtained, there is a risk that he will opportunistically commit such offences if released from custody. I am satisfied on this basis that there is an unacceptable risk that he will commit a serious sexual offence if released from custody or released from custody without a supervision order being made. His current inadequate understanding of the seriousness of such offences, as demonstrated by the factors referred to by the psychiatrists, is the reason for that conclusion. If the undertaking of further courses results in a proper understanding and acceptance of the seriousness of the offences and that they should not be committed, the risk may reduce to an acceptable level. At present, the risk that he will commit a further serious sexual offence is unacceptable.

28. There are two things that emerge from the expert evidence about the offender. The first is that it is accepted that he is not in the category of offenders who appear to be intractable. The second is that he is a young man whose process of maturation and better understanding of the issues may result in his requiring less restraint than is currently appropriate. That is the tenor of the evidence of the psychiatrists. However, I am satisfied that as the matter stands, a Division 3 order should be made.

Continuing detention order or supervision order?

29. This is an issue upon which the psychiatrists divided. Dr James was of the opinion that the process of absorbing the lessons to be learnt from the proposed course or courses would be better achieved in a custodial environment. He said that the respondent needed to become settled as an individual, capable of independent living in the community, and with a structured life and support system. Cultural factors were important in that regard. Because the change in attitude that needed to be made before he could safely be released from prison had to date been very modest, the risk was only lessened by a small extent from the risk that existed previously. Further, for him to undergo a program, it would take time. The program would have to be assimilated and incorporated into his behaviour and thinking. That would extend over a period of months. During that time it would be better if the respondent were in the more stable environment of a prison where he did not have to confront the very many challenges that he would have in rehabilitation after his period of institutionalisation, especially given his history. Release from prison immediately would detract from the effect and impact of any program.

30. On the other hand, Dr Lawrence said that she could understand Dr James’ reasoning and understood the benefits that he was pointing to. However, she did not share the view that it was preferable to make a continuing detention order. She felt that the respondent could benefit from further exposure to the proposed programs but was uncertain about the merit of keeping him in custody for a lengthy period of time to repeat the same sort of program. She thought that it could even ultimately be counter-productive.

31. Doctor Beech said that he had seen Dr James’ report. He said that he thought that the kind of further education that was necessary could be done in the community. He accepted that there needed to be a seamless transfer into the community. He thought that it would be best if he were to go from prison into the community and very quickly take up the programs. He was not sure how much more benefit the respondent would get from the programs in the prison setting. The gains were, in his opinion, to be achieved by helping him maintain the benefits in the community rather than to continue the programs further in a custodial environment.

32. As long as the statute continues to provide no means by which serious sex offenders may undergo a staged release into the community to test whether they are capable of not re-offending, there is no intermediate option between confinement full-time in prison, and full-time conditional release. It then becomes necessary to make a judgment in each case between subjecting the offender to continuing detention beyond the expiration of the term imposed for the offence, and allowing the offender to go full-time into the community and live there subject to restrictions designed to minimise risk of re-offending.

33. In my view, a continuing detention order is not required in this case. The appropriate order is a supervision order with appropriate terms and conditions to enable the respondent’s integration into the community while achieving the dual aims of protecting the public by the restrictions in the order and by requiring him to take appropriate programs to achieve the degree of insight necessary to minimise the risk of further serious sexual offending. The term of ten years was considered appropriate by all the psychiatrists.

Form of the order

34. The Attorney-General’s counsel had provided a proposed draft in the event that a supervision order was to be made. There are a number of issues relating to the form of the order that were canvassed on the respondent’s behalf. There was a general observation that, given the intellectual limitations of the respondent, the form of order should be as simple as possible. I do not disagree with that notion but there is a difficulty in drafting in basic English. It tends to risk a lack of precision in stating what are, to most who are familiar with the law, well known concepts. Further, some of the provisions mirror the terms of the legislation and should not be departed from without good reason.

35. While orders have to be tailored to individual cases, where particular requirements have become common to many orders, it is probably counterproductive to express them differently, in case it be thought that there is a distinction between the obligations in individual cases. I was advised from the Bar table that the requirements of the order are, in practice, fully explained by an authorised Corrections Officer so that the person subject to the order is fully aware of what the obligations are. If a prisoner is functionally or substantially illiterate, that is the only way in which he can be adequately informed of the nature of the restrictions to which he will be subject. Accordingly, I do not intend to depart substantially from the form of clauses which are, in my experience, now fairly standard formulations, except in relation to some simplifications where there can be no doubt that the same concept is being expressed, and in formatting for greater ease of comprehension.

36. There were also submissions made by the respondent’s counsel that, in my view, would involve the imposing of obligations on the Department that may have resource implications. One of those was that a person of the same cultural background as the applicant be assigned as his Community Corrections Officer. While that suggestion plainly has merit in the practical sense, since it may be assumed that such an officer would be aware of any cultural issues that may be important, I am not inclined to impose that obligation upon the Department. If there is such a resource available, I would encourage the Department to use it. But to require it to do so probably has, as I have said, resource implications. In my view the court should not lightly impose an obligation of this kind, at least without sufficient information to feel assured it is feasible.

37. It was also submitted that a provision should be incorporated in the order requiring the applicant not to reside with other sexual offenders. It is plainly in accordance with the views of the psychiatrists that it would not be desirable if the respondent were to be placed in that situation. However, as the Department has put before me evidence that an alternative living arrangement proposed by the respondent is unsatisfactory, one has to have regard to the reality in this sort of case and recognise that as a last resort, the Department may have no option but to place him, either in the short term or more permanently, in proximity with other offenders.

38. The assessment made of the alternative arrangement was performed quickly, and plainly involved matters of impression gained by the person or persons who did the it. If, on further investigation and reflection, that arrangement appears to be more satisfactory that at first, it would provide an alternative that would be preferable to placing him with other offenders. That, once again, is a matter for the Department, not the court, to resolve.

39. Another submission was that there should be a specific provision in the order partially exempting the respondent from the general restriction on becoming a member of any club or like organisation where the risk of contact with children would arise. This arose in the context of an expressed desire on the part of the respondent to play football. It may be accepted that engaging in sport is likely to have a more beneficial effect upon a man of the respondent’s age and background than imposing a regime on him that recreates the setting in which the lack of motivation that contributed to the offending behaviour may develop again. However, there are a number of issues in this regard.

40. There was some evidence that he may have played football with a particular club in the past. The details as to that are very sketchy. However, it immediately springs to mind that it will ultimately be a matter for the club whether it accepts the respondent as a member. Successfully engaging in sport of this kind will also depend, to a large extent, on matters such as the aptitude, dedication and self-discipline of the person involved. In the circumstances, it is obviously sensible that, if the respondent is disposed to conscientiously participate, avenues enabling him to participate should be explored and he should be encouraged to do so, subject to whatever safeguards are considered necessary. The form of words proposed by the Attorney-General’s counsel which gives the authorised Officer a discretion to approve, in my view, is appropriate. Because there are so many imponderables involved in the proposal, such an approach, undertaken in good faith, is the only practical way of accommodating the interests of all parties.

41. I am also of the view, contrary to the submission by the respondent’s counsel, that there should be a prohibition on consumption of alcohol and use of drugs, as substance abuse is generally a factor that disinhibits offenders and, in this case, seems to have been a factor in at least some of the respondent’s offending behaviour.

Order

1. The Court is satisfied to the requisite standard that the respondent, Traven Lee FISHER, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003.
2. The respondent be subject to the following conditions until 22 November 2017 or further order of the Court:

The respondent must:

1. be under the supervision of an authorised Corrective Services officer for the duration of the order;
2. report to an authorised Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of release from custody and at that time advise the officer of the respondent’s current name and address;
3. report to, and receive visits from, an authorised Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services;
4. comply with every reasonable direction of an authorised Corrective Services officer;
5. respond truthfully to enquiries by authorised Corrective Services officers about his whereabouts and movements generally;
6. notify and obtain the approval of the authorised Corrective Services officer for every change of the prisoners name at least two business days before the change occurs;
7. notify the authorised Corrective Services officer of:
   1. the nature of his employment;
   2. any offer of employment;
   3. the hours of work each day;
   4. the name of his employer; and
   5. the address of the premises where he is or will be employed;
8. seek permission and obtain approval from an authorised Corrective Services officer before:
   1. entering into an employment agreement; or
   2. engaging in volunteer work or paid or unpaid employment;
9. reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment;
10. not reside at another a place:
    1. overnight
    2. by way of short term accommodation

without the permission of the authorised Corrective Services officer;

11. seek permission and obtain the approval of an authorised Corrective Services officer before changing his place of residence;
12. not leave or stay out of Queensland without the written permission of an authorised Corrective Services officer
13. not commit an indictable offence while this order is in force;
14. not commit an offence of a sexual nature while this order is in force;
15. not have any direct or indirect contact with a victim of his sexual offences without the prior approval of the authorised Corrective Services officer;
16. notify the authorised officer of the make, model, colour and registration number of any vehicle:
    1. owned by him; or
    2. generally driven by him, whether hired or otherwise obtained for his use;
17. submit to and discuss with the authorised   Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;
18. submit to medical, psychiatric, psychological or other forms of assessment and/or treatment as directed by an authorised Corrective Services officer;
19. not drink alcohol while this order is in force;
20. not use illicit drugs while this order is in force;
21. take prescribed drugs only as directed by a   medical practitioner;
22. not visit premises licensed to supply or serve alcohol, without the prior written permission of the authorised Corrective Services officer;
23. submit to any form of drug and alcohol testing, including both random urinalysis and breath testing, as directed by the authorised Corrective Services officer;
24. attend upon and submit to assessment and/or treatment by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by the authorised Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist, the expense of which is to be met by Queensland Corrective Services;
25. agree to undergo medical testing or treatment (including the testing of testosterone levels by an endocrinologist if required) as deemed necessary by the treating psychiatrist and supervising Corrective Services officer;
26. permit the release of the results and details of the testing referred to in (xxv) to Queensland Corrective Services, if such a request is made for the purposes of updating or amending the supervision order or for ensuring compliance with this order, the expense of which is to be met by Queensland Corrective Services;
27. permit any medical, psychiatric, psychological or other mental health practitioner to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order;
28. attend any program, course, psychologist or counsellor, in a group or individual capacity, as directed by an authorised Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;
29. not have any supervised or unsupervised contact with children under 16 years of age except with prior written approval of an authorised Corrective Services officer.  The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children;
30. not establish and maintain contact with children under 16 years of age without written prior approval by an authorised Corrective Services officer;
31. seek written permission from an authorised Corrective Services officer prior to joining, affiliating with or attending the premises of any club, organisation or group;
32. 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 without prior written permission of an authorised Corrective Services Officer;
33. advise a Corrective Services officer of any repeated contact with a parent, guardian or person with temporary care of a child under the age of 16.  The offender shall, if directed by his supervising officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to that person as nominated by the supervising officer, and contact may be made with such persons to verify that full disclosure has occurred;
34. comply with a curfew direction or monitoring direction.