Attorney-General v Foy[2009] QSC 85

SUPREME COURT OF QUEENSLAND

A LYONS J: 

History

1. The respondent, Mark Anthony Foy (Mr Foy) is currently 47 years of age and has a long and concerning criminal history for sexual offences against children. Those offences commenced in 1986 and include indecent assaults or indecent acts in the presence of children.

2. On 6 January 2005, Douglas J ordered that Mr Foy be subject to a supervision order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) until 31 December 2014.  At the time that supervision order was made, Mr Foy had served a 4½ year period of imprisonment for 13 counts of indecent dealing, committed on 2 separate occasions in 1999 and 2000. The offences involved 9 different children aged between 6 and 12 years.   The nature of those offences is described in the reasons of Douglas J;

“[3]Apart from one offence dealt with before the District Court in 2001 by his Honour Judge Hoath, the offences did not involve any significant violence to the children victims. Many of the offences occurred in public toilets in parks. Generally speaking, Foy would masturbate in front of children, ask them to touch his penis or grab the hand of a child and put it on his penis or touch girls in the area of the vagina. On one occasion he licked a young girl in that area and on another occasion procured a young boy to perform oral sex on him. He also performed oral sex on that boy. One of the offences dealt with by his Honour Judge Hoath, however, involved Mr Foy grabbing an 11 year old boy by the arms putting him on his lap and saying to him “you can either stick it in your mouth or up your bum”. He was sentenced to 3 years’ imprisonment in respect of that count.

[4]He has a significant criminal history apart from these offences and has on several occasions’ breached parole, probation orders and community based orders. In 1999 he sent a letter to another prisoner giving explicit details about a fantasy he had which involved paying 3 young children $10.00 to expose themselves and allow themselves to be touched by him.”

3. Those reasons also stated;

“[5]He was involved in the sex offender treatment program for 13 months between 24 October 2001 and 20 November 2002 but appears to have made little progress during that period, perhaps partly because of his lack of the intellectual ability to appreciate the seriousness of his conduct. While on that course he revealed that, although his criminal record dated back to 1989 when he was aged 28, he began to offend when he was about 25 and said that he would locate parks and areas of bushland and reconnoitre those areas days or weeks in advance of loitering there in the hope of making contact with potential victims. He was assessed by the course coordinators of that program to have a relatively high risk of sexual reoffending. It was also recommended that he avoid being alone with children under any circumstances.”

4. The Psychiatric Reports of Dr Moyle and Dr Lawrence conclude that, Mr Foy has an Antisocial Personality Disorder with Dr Lawrence, in her report dated 29 March 2006, also concluding that he also had a Substance Abuse Disorder and Paedophilia.

5. Since the supervision order was made in January 2005, Mr Foy has not committed any further sexual offences. He has however, been the subject of a number of applications by the Attorney General as a result of breaches of the conditions imposed by the supervision order.

6. On 14 June 2006, McMurdo J found that Mr Foy had contravened the supervision order made by Douglas J on 6 January 2005.^[1] On that occasion it was found that Mr Foy had breached the condition that he abstains from alcohol and non-prescribed drugs for the duration of the order. Mr Foy had taken illicit drugs, predominately methylamphetamine, between October 2005 and February 2006.  His Honour was not satisfied that adequate protection of the community required the rescission of the supervision order and the supervision order was therefore amended to contain a condition allowing the Department of Corrective Services to immediately place Mr Foy in a drug treatment facility should any test show the presence of an illicit drug.  

7. On 5 June 2007, Helman J found that the respondent had again contravened the order made, as amended by McMurdo J.^[2] Again, the breach related to a failure to abstain from alcohol and non-prescribed drugs for the duration of the order, in that, Mr Foy admitted the use of methylamphetamine on two or three occasions, alcohol on one occasion and cannabis on one occasion.  Helman J accordingly, amended the order.

8. On 15 July 2008, White J found that, Mr Foy had again contravened the supervision order in that, he failed to abstain from alcohol and non-prescription drugs for the duration of the order. Further, it was found that, he failed to comply with the reasonable directions of an authorised corrective services officer, by failing to attend appointments as directed. As a consequence of those findings, White J amended the supervision order and included additional conditions that, Mr Foy was required to comply with a curfew direction or a monitoring direction. That amended supervision order of 15 July 2008, contains the current conditions of the supervision order which was initially imposed on 6 January 2005 and which continues until 31 December 2014.

This application

9. The Attorney General for the State of Queensland now applies for orders pursuant to s 22 of the Act. Section 22 provides that, if the court is satisfied “on the balance of probabilities” that the respondent has contravened a supervision order, then, unless the respondent satisfies the court on the balance of probabilities that adequate protection of the community, despite the contravention, be ensured, the court must rescind the supervision order and make a continuing detention order.

Contraventions

10. There is one contravention alleged. The order of White J contained, in clause (xx) a requirement that the respondent was “…not to have any unsupervised contact with children under 16 years of age except with the supervising corrective services officer’s prior written approval and provided the respondent discloses the terms of this order to the guardians of the child/ren before any such contact takes place”.

11. On 17 December 2008, Aaron Hamrey, a police officer, was conducting a patrol and located Mr Foy at a swimming hole with two juvenile males, one of whom was 16 and one was 13 years of age. Constable Hamrey’s affidavit indicates that, he observed three males in the water on the southern side of the swimming hole and that at least one of the boys referred to the respondent as “Mark”.

12. Mr Foy, in his affidavit, indicates that he had organised to meet two adult friends at the swimming hole and was unaware that anyone was swimming there. He states that, within five minutes of arriving, the police arrived and that whilst he spoke to the boys, he had not previously come within 4 or 5 metres of them.

13. On the evidence however, it is clear that Mr Foy was swimming with and speaking to a child under the age of 16 years and there had been no approval from the respondent’s supervising corrective services officer, as required by the supervision order.

14. I consider that the conduct, as detailed by Constable Hamrey, is a clear breach of clause (xx) of the Order of White J. I am therefore satisfied, on the balance of probabilities, that Mr Foy has contravened the supervision order made by Justice White on 15 July 2008.

The Act

15. Section 22 of the Act is as follows:

“22 Court may make further order

(1) The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order).

(2) Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must—

(a) if the existing order is a supervision order, rescind it and make a continuing detention order; or

(b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order.

(3) For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following—

(a) act on any evidence before it or that was before the court when the existing order was made;

(b) make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including an order in the nature of a risk assessment order.

(4) To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a).

(5) If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies.

(6) For applying section 11 to the preparation of the report—

(a) section 11(2) applies with the necessary changes; and

(b) section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist.

(7) If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court—

(a) must amend the existing order to include the requirements mentioned in section 16(1)(da) and (db), if the existing order does not already include the requirements; and

(b) may otherwise amend the existing order in a way the court considers appropriate—

(i) to ensure adequate protection of the community; or

(ii) for the prisoner’s rehabilitation or care or treatment.

(8) The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”

16. Accordingly, as I am satisfied that Mr Foy has contravened a requirement of a supervision order, then pursuant to s 22(2) of the Act, unless Mr Foy satisfies the court, on the balance of probabilities, that, adequate protection of the community can, despite the contravention, be ensured by the existing order as amended, the court must in the case of an existing supervision order rescind it and make a continuing detention order. Clearly then, as I am satisfied that there has been a breach of a supervision order, the onus has shifted to the respondent to demonstrate, on the balance of probabilities, that despite the contravention, adequate protection of the community can be ensured.

Can the adequate protection of the community, despite the contravention, be ensured by the existing order as amended?

17. Section 22 (3) (a) provides that, the court may act on any evidence before it, or that was before the court, when the existing order was made. I have had regard to the earlier reports of Dr Lawrence, particularly the reports dated 20 December 2004, 29 March 2006, 30 January 2007, and 10 July 2008. In these reports I note that Dr Lawrence considers that, essentially Mr Foy is most likely to respond to “intensive supervision and correction” and did not recommend indeterminate detention. Douglas J also in his reasons noted that, neither of the appointed psychiatrists considered that there was any utility in keeping Mr Foy in prison, but that community treatment and support involving intensive supervision and correction was the treatment most likely to be effective in trying to prevent reoffending.

18. Dr Lawrence was also requested to provide a further report, as a result of further contraventions by Mr Foy and in her report dated 30 March 2009 she states;

“2.1The behaviour over which he is charged as a breach of condition, is indicative of previous “grooming” behaviour, with a heightened risk of sexual offending against young male/s similar to previous offences.

2.2The existing order exists so as to decrease the risk of re-offending but cannot ensure it.

2.3The current offending behaviours (and breach of condition) indicates the risk is still present.

2.4The risk is not increased. It has merely been detected early and prevented, as intended.

2.5This demonstrates that the existing supervision order is currently effective in managing the risk to the community posed by Mr Foy.”

19. The evidence of Dr Lawrence indicates that, an existing supervision order is “currently effective” in managing the risk to the community posed by Mr Foy. 

20. I consider therefore, that the respondent has discharged the onus of proof required by the Act. I consider that on the balance of probabilities, the adequate protection of the community can be ensured, despite the contravention by a supervision order.

21. I also note that the current contravention is not of a similar kind to the previous contraventions, as the current contravention has not involved the use of illegal substances or alcohol. This is, in itself, a positive step. Justice White also noted in her reason on 15 July 2008, that whilst at that time, there had been seven positive tests for benzodiazepine, there had been 80 tests in the period and for the majority of them he had not returned a positive test.

22. I consider however, that the current contravention is serious and concerning, given that it involves behaviour which once again locates Mr Foy in “parks and areas of bushland,” where he may be loitering in the hope of making contact with potential victims.  Clearly, Mr Foy needs intensive supervision.  This supervision however, is clearly in place and the evidence is that the current intensive supervision order has been effective in managing the risk.  Mr Foy’s behaviour was detected early, as intended.  The requirement that he advise his current car registration, enabled the prompt identification of Mr Foy at the swimming hole.  Mr Foy is also subject to numerous other rigorous conditions which also go towards managing the risk.  

23. Mr Foy has been in detention since 18 December 2008 and he clearly now knows that the conditions of the supervision order are required to be obeyed.

24. I also note that Mr Foy has not reoffended since his release, over four years ago.

25. Accordingly, pursuant to section 22(7), I am required to amend the existing supervision order in accordance with that section.

26. There will therefore be an order in terms of the draft order.