Attorney General v Fisher[2010] QSC 117

SUPREME COURT OF QUEENSLAND

Introduction

[1] On 3 July 2009, an order was made by Byrne SJA pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) that Mr Fisher be released on 7 September 2009, subject to a supervision order.  Mr Fisher will remain subject to that order until 4 September 2019.[1]

[2] Condition (xxiv) of the order provides that Mr Fisher is to “abstain from illicit drugs for the duration of this order.”  Mr Fisher breached that condition by consuming cannabis.

[3] Section 22 of the Act provides that the Court may make further orders in the event of a contravention.  If the Court is satisfied on the balance of probabilities that the released prisoner has contravened the supervision order, he bears the onus of proving, to the same standard, that the adequate protection of the community can be ensured by the existing order, amended if appropriate, despite the contravention (s 22(2) and (7)).

[4] If the Court is not so satisfied it must rescind the supervision order and make an order for continuing detention (s 22(2)).

Background

[5] Mr Fisher is an indigenous man who was born in 1978.  He is now 32 years old, in a relationship and expecting the first child of that relationship in July 2010.

[6] On 7 February 1997, Mr Fisher was sentenced to 12 and a-half years imprisonment as the head sentence for offences of rape, break and enter of a dwelling, assault occasioning bodily harm, common assault and stealing.  Mr Fisher has a lengthy criminal history and has spent much of his adult life in custody.  The offence of rape was his first sexual offence, “committed opportunistically during a robbery.”[2] 

[7] The offences were committed on 27 March 1996.  Mr Fisher was heavily intoxicated by alcohol and reportedly had consumed cannabis.  He knew the victim, having recently met her at a friend’s residence.  Mr Fisher and a friend went to the victim’s unit block looking for another person who owed him a sum of money.  He knocked on the victim’s door asking her if she knew the whereabouts of the debtor.  The two men then walked around to the back of the unit and entered through the unlocked back door.

[8] Mr Fisher threw a punch at the victim but missed.  He then threatened to kill her if she screamed.  Mr Fisher then took her upstairs to the bedroom, ordering her to lock the door and close the blinds.  She was forced to remove her clothing and Mr Fisher did likewise.  He masturbated and instructed the victim to fellate him but she refused.  Mr Fisher then told the victim to lie on the bed where he raped her digitally and then by penile penetration.  On his way out of the unit, Mr Fisher stole a stereo and compact discs.

[9] The victim suffered what was described by the learned sentencing judge as “serious after-effects” which included post-traumatic stress disorder and depression.

[10] Byrne SJA was satisfied to the requisite standard that Mr Fisher was a “serious danger to the community” in the absence of a supervision order.  His Honour noted Mr Fisher’s unfortunate life history, including the development of substance abuse problems from a young age.

[11] Professor James and Dr Beech prepared reports for the purpose of s 11 of the Act and both psychiatrists emphasised the importance of a condition requiring complete abstinence from alcohol and illicit drugs. Byrne SJA concluded his decision:

“If the respondent can remain abstinent from alcohol and illicit drugs, he has good prospects of becoming a useful member of the community.  He has substantial incentives to do so. He has a young child and a fiancée waiting for him.  If, therefore, he can find the strength to stay away from drugs and alcohol, his prospects are reasonable.  If he cannot, he faces the near certainty of return to prison.”[3]

The contravention

[12] On 26 October 2009 at 4.30 pm surveillance officers from the High Risk Offender Management Unit (HROMU) attended at the Wacol Precinct where Mr Fisher was then living to conduct random urine tests.  Mr Fisher complied with instructions and submitted to the test.  Despite having told the officers that he had not consumed any illicit drugs, testing of the sample revealed a positive result for tetrahydrocannibinol (THC). 

[13] Mr Fisher does not contest the alleged contravention.  He has admitted that he “took a couple of ‘drags’ on a joint of marijuana” in response to suffering significant stress whilst complying with the supervision order.[4]

[14] As Mr Fisher explained in his affidavit, he smoked the marijuana offered to him by an associate at a time when he was under significant personal stress.  At the time he was experiencing difficulties in his relationship with his partner, in obtaining suitable accommodation and generally adjusting to life in the community after a very long period of incarceration.  Before then he says that he had no difficulty with cravings, but in a “moment of weakness” smoked the drug.

[15] At the time Mr Fisher shared a house at the Wacol precinct with two other men.  The other men did not assist with cleaning the house and Mr Fisher was the only person who bought food for the house.  The accommodation at the Wacol precinct was in poor condition and at the time Mr Fisher and his wife were seeking alternative accommodation, approved by the Department.  He found it very stressful to stay at the Wacol precinct away from his wife.

The consequences of the contravention

[16] As a result of the positive test, Mr Fisher was arrested and returned to custody on 27 October 2009.  He applied to be released pending the final determination of the contravention proceedings and, by order of the Court pursuant to s 21(2) of the Act, Mr Fisher was released on an interim supervision order on 6 November 2009.[5]  However, he remained in custody until 10 November 2009 because he had been charged with an offence under s 43B of the Act, arising from the same test.  He was sentenced on 10 November 2009 in the Richlands Magistrates Court to 14 days imprisonment with immediate parole.

Summary of expert opinion

[17] Professor James and Dr Beech have prepared reports addressing the contravention and its relevance to the risk of Mr Fisher committing a further ‘serious sexual offence’ and to the protection of the community. 

Professor James – Report dated 19 February 2010

[18] Professor James notes that in his initial report he diagnosed Mr Fisher as fulfilling the criteria for –

(i) Severe Substance Abuse (Alcohol and Marijuana) – in remission on account of his incarceration; and

(ii)Antisocial Personality Disorder

[19] The Substance Abuse Disorder “should be seen as a major pathology contributing to Mr Fisher’s offending behaviour.”  Professor James recommended that, if released on a supervision order, Mr Fisher should be subject to “a total prohibition with respect to his consumption of alcohol or other intoxicants; and any contravention of that prohibition should be regarded as an early warning of potential relapse.”

[20] The contravention should be viewed seriously and Professor James is confident that the seriousness would have been conveyed to Mr Fisher by the early detection of the contravention and his prompt return to prison following it.  Further, Professor James is comforted by there being no other concerns expressed by those managing Mr Fisher in respect of “the use or abuse of intoxicants.”

[21] In his opinion, Mr Fisher’s “risk of re-offending is currently as it was when he was released from prison in September of 2009 – (that is) the risk should be seen as generally moderate.”

[22] Professor James’ report noted that it was unclear whether Mr Fisher was seeing a mental health clinician as recommended in his initial report.  A therapeutic relationship with such a clinician was an important part of Mr Fisher’s rehabilitation and risk management according to Professor James’ report.

[23] Since writing his updated report, Professor James has been provided with the progress report of Ms Anne Turner, a social worker who has been providing Mr Fisher with counselling since December 2009.   Professor James gave oral evidence that Ms Turner has been able to provide Mr Fisher with two important things.  The first is a professional relationship of trust.  The second is the benefit of an experienced social worker who is able to intervene on his behalf to resolve problems and to assist him in coping with stress.  In Professor James’ opinion, the professional relationship that Mr Fisher has with Ms Turner means that Mr Fisher does not presently need to be referred to a psychiatrist for therapy.  However, Ms Turner can refer Mr Fisher to a psychiatrist or other health professional for opinion and medication, if required.

[24] Professor James’ evidence is that since the contravention Mr Fisher has been able to cope with stresses in his life without resort to drugs and alcohol.

Dr Beech – Report dated 20 December 2009

[25] Dr Beech notes that the contravention occurred within weeks of Mr Fisher’s release and is significant on account of substance abuse having been identified as a “particular risk factor for re-offending.”  Dr Beech opines that the contravention “represents a serious increase in his risk of re-offending” although he does not believe that the risk is imminent.

[26] Dr Beech considers that ongoing supervision and monitoring is important to halt drug and alcohol use before it leads to the commission of further offences by Mr Fisher. In respect of risk management, Dr Beech’s report further states:

“In my opinion, Mr Fisher has never really adjusted to community living and the general stresses of life without substance use.  If his risk is to be managed in the community his abstinence will need to be assisted by intensive support that would include personal counselling, and importantly, some form of relationship counselling that would incorporate his partner.  He would also require involvement in a specific drug and alcohol program.  His abstinence would need to be stringently monitored.”

[27] Since writing that report Dr Beech has been provided with the progress report written by Ms Turner.  Dr Beech in oral evidence described the treatment that Mr Fisher received from Ms Turner in recent times as appropriate.  He noted that it is still “early days”, but that Mr Fisher has established a rapport with Ms Turner who is able to assist him in coping with stresses in his daily life. 

[28] Dr Beech observed that Mr Fisher’s personal circumstances have changed since the date of his contravention.  He no longer lives in the Wacol precinct where he experienced a range of interpersonal problems and logistical difficulties.  He now resides with his partner.  His present circumstances, according to Dr Beech, pose different stresses.

[29] Dr Beech said that one of the benefits of the supervision order was that Mr Fisher’s cannabis use was detected promptly.  The knowledge that such use will be detected and the treatment that Mr Fisher has received since that contravention means that Mr Fisher has not used cannabis since the date of the contravention.  In the light of the progress that Mr Fisher has made, despite ongoing stresses, Dr Beech is of the opinion that the risk of Mr Fisher offending is now no higher than it was at the time of his release. 

Anne Turner – Report dated 31 March 2010

[30] Mr Fisher is receiving counselling from Ms Turner fortnightly.  She has obtained consent from the HROMU to involve Mr Fisher’s partner in every second session, thereby addressing Dr Beech’s concern that personal and relationship counselling form part of Mr Fisher’s ongoing management.

[31] Ms Turner recognises Mr Fisher’s difficulties in integrating into the community after a long period in prison, including his struggle to meet his various commitments.  She is addressing those issues, as well as financial concerns and Mr Fisher’s difficult relationship with his mother and foster-mother.  Her report also indicates that progress has been made in addressing Mr Fisher’s anger management issues.

[32] Ms Turner is encouraging Mr Fisher to engage in activities to assist him gaining employment and reducing stress.  She plans to address areas related to Mr Fisher’s risk of re-offending in the current quarter.

[33] Those issues include substance use and Ms Turner indicates that Mr Fisher has been dismissive when such issues have been raised.  She notes that Mr Fisher has “used drugs in the past partly as a means of dealing with stress”.  Ms Turner hopes that his resistance to dealing with these important issues will reduce as trust builds in the therapeutic relationship.

Mr Fisher’s conduct since his release in November 2009

[34] The records contained in the Integrated Offender Management System[6] indicate that Mr Fisher has been largely compliant with the conditions of the order.  A formal censure was issued on 18 February 2010 on account of him being late to and missing some appointments, however there is no evidence of further drug or alcohol use.

[35] Mr Fisher has undertaken numerous random urine tests since 6 November 2009.  In March of this year his “brother”[7] committed suicide while in custody, and despite this significant personal stress, Mr Fisher did not revert to the use of cannabis or alcohol.

[36] Mr Fisher has moved from the Wacol precinct into his partner’s family home.  The evidence indicates that his accommodation at Wacol was causing him a significant degree of stress.

[37] In addition to receiving counselling from Ms Turner, Mr Fisher has engaged with employment agencies, in discussions regarding his budget and is playing football. 

Ongoing alcohol and drug counselling

[38] Efforts are being made to arrange drug and alcohol counselling close to his home.  On 15 April 2010 Ms Turner was instructed to provide alcohol and drug counselling to Mr Fisher as part of her treatment of him, and Queensland Corrective Services is in contact with Alcohol and Drug Services Queensland in relation to referral services.

Conclusion

[39] Professor James states that with continuing supervision and the development of a therapeutic relationship, Mr Fisher’s level of risk is no greater than it was when he was initially released on the supervision order in September 2009.  Dr Beech also is of the opinion that currently, and with the benefit of supervision and therapy, the risk is no higher than it was at the time of Mr Fisher’s release.  Both experts support ongoing supervision and counselling to manage the risk.  There is no suggestion in the material relied upon by the applicant, and the applicant does not submit, that a continuing detention order is necessary to adequately protect the community.

[40] I am satisfied on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by a supervision order.  Neither party proposes any amendment to the order made by Byrne SJA.  The experts do not propose any amendment to it.

[41] The order of the Court is that:

1.The Court is satisfied to the requisite standard that the respondent, Harrigan Dean Fisher, has contravened a requirement of the supervision order imposed by Byrne SJA on 3 July 2009.

2.The respondent continue to be subject to the supervision order imposed by Byrne SJA on 3 July 2009.