Attorney-General for State of Queensland v. Foy

[2004] QSC 428

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

[2004] QSC 428

FRYBERG J

No BS8990 of 2004

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND	Applicant
and
MARK ANTHONY FOY	Respondent

BRISBANE

..DATE 30/11/2004

ORDER

HIS HONOUR:  There is before the Court an application by the Attorney-General for orders pursuant to Division 3 of the Dangerous Prisoners' (Sexual Offenders) Act 2003.  The proceedings come before the Court having been set down for hearing by a judge whose order was made on the 26th of October this year. 

The respondent Mark Anthony Foy is presently serving a sentence of four and a half years imposed for a number of offences of indecent dealing on his plea of guilty on the 23rd of January 2001.  That series of offences resulted in imprisonment being imposed on him for a total period of four and a half years.  Taking into account time spent before that date the prisoner's period of imprisonment expires tomorrow the 1st of December. 

When the matter came before me yesterday the counsel for the Attorney-General applied for an adjournment of the hearing until the 22nd of December that being a day when I was informed there is available time for the matter to be heard and at the same time counsel sought an order that the respondent be detained in custody during that period.  Such an order may be made under section 8(2)(b) of the Act.

It is not immediately apparent to me that I have power to make the order when the matter comes on for hearing under Division 3.  However, I am content to proceed on the assumption that I do have power since it was, I think, not challenged that I do and the judge who made the order on the 26th of October granted liberty to apply.

The reason why the adjournment is sought is that only one of the two psychiatrists' reports which were ordered on the 26th of October has so far been provided.  The reason for the non-provision of the second report is explained in the material and without going into detail it is a satisfactory explanation and the absence of the report is not a matter which causes one to attribute fault to any person.

The result, however, is unfortunate.  Counsel for the Attorney-General submits that although there is no express prohibition in the Act against my proceeding under section 13 of Division 3 such a prohibition is to be implied from the terms of section 13(4)(a).  That submission is (curiously) supported by counsel for the respondent although the use and consequences which he would submit to follow are not necessarily the same.

It does seem that the Act envisages that there will be two reports before an order is made under the section.  However I am not altogether persuaded that that necessarily means that there is no power to proceed in the absence of the two reports, at least in a case where the respondent concedes, as does the present respondent, that a supervision order is appropriate and that is also the position by the psychiatrists.

I would add that, although one of the two psychiatrists has not reported, her draft report indicates that she, like the psychiatrist who has reported, is of a view that this is not a case for ordering continuing detention but rather is a case for a supervision order.

I am, however, not prepared to determine the matter on this basis because it has not been argued before me with a contradictor and to do so would, therefore, be unsatisfactory.

I proceed, therefore, under section 8.  The respondent opposes both the adjournment and the making of an interim detention order although the opposition to the adjournment was muted and probably reflected more the idea that there might be detention if there was an adjournment. 

It seems to me that given the importance of the application and of the nature of the issues which it raises it is desirable that it be adjourned.  The alternative would be to dismiss it and that, I think, would be unsatisfactory when what has prevented the proceeding is in the immediate period prior to the date of hearing not anyone's fault.  I am, therefore, prepared to grant the adjournment which the Attorney-General seeks.  That leaves the question of whether there should be an interim detention order. 

The respondent accepts that there should be, in the long term, supervised release and is willing to offer elaborate undertakings to govern his conduct in the period of three weeks between his release and the date of the hearing.  It seems to me that when I have regard to the terms of the undertakings offered and to the level of supervision which will be provided to the respondent each day, there is a strong case to be made for allowing his release to occur at the time it is scheduled to occur.

The undertakings which are offered are such that there is, in my view, for the short period of three weeks, not an unacceptable risk to the community.  The respondent will be required to report to the police on any day when he does not receive a visit from a Corrective Services officer.  He will be required to reside at a fixed address, to not go within 100 metres of a school, child care or other facility and to comply with a number of other conditions which go down to the letter "r" and which, for the sake of time, I will not orally elaborate.

The applicant submits that the need for the respondent's continued detention is evident in a letter sent by Professor Barry Nurcombe, the psychiatrist who has reported to Crown Law on the 26th of November.  In that letter Professor Nurcombe said:

"I strongly advise against the release of this prisoner into the community after the hearing of 29 November 2004 until a post discharge plan has been agreed upon and is in place.  To release him without accommodation, without a job, without any social support and without a treatment plan would be very inadvisable."

It seems to me that, in that letter, Professor Nurcombe, who was not called to give evidence, is talking about the release of the prisoner permanently, not about the situation which has arisen, that is, release for three weeks pending a further hearing.

I have read Professor Nurcombe's report and am aware of the risk factors which it identifies.  I am, however, satisfied as I have said by reason of the undertakings offered that in the short term the risks are not unacceptable.

I am further influenced in my view that I should not accede to the Attorney's application by the failure of the applicant to provide any explanation for why the originating application was not brought in a timely way.

The Act permits an application to be made at any time during the last six months of the prisoner's period of imprisonment.  This application was not brought until one and a half months before the prisoner's date for release.

It appears that the psychiatrists are - or will be - agreed that subject to the formulation of a proper supervision regime this is a case for release under a supervision order, not for continuing detention.  Indeed, Professor Nurcombe said in his report:

"From a rehabilitative point of view there is no utility in keeping Mark Foy in prison where he is receiving no treatment and where he spends his time isolating himself from other paedophilic inmates or mimicking rooster calls to divert the intimidation of inmates who are not sex offenders.  However, without community treatment and support he is highly likely to commit further sexual offences against children."

And he goes on to detail why he is of the view that community support and supervision is desirable.  That, of course, was written with a view to the section 13 hearing but it makes the point that in the long term this is not a case for continuing detention.

The short-term problem has arisen because it was only last Friday when the respondent was notified that the Attorney would be seeking his continued detention during the period of an adjournment.  His solicitors have made efforts to find suitable accommodation for him in that time and they appear, having regard to the material in the affidavit of Ms Bell, to have had some success.

On the other hand, despite the time from the beginning of last week until now, over a week, during which the applicant could have prepared material to explain the delay, no such material has been prepared.  This has continued to be the Attorney-General's position even after I pointed out the deficiency yesterday and suggested that the one day adjournment which the respondent needed to seek accommodation might usefully be used by the applicant to explain why it took four and a half months to bring the application.

There has been an affidavit filed which deposes to the current procedures and to the causes of delay from the time that the application was brought. 

The affidavit is ostentatiously silent on why there was delay prior to the bringing of the application and I can only conclude that this silence is deliberate.

Those circumstances therefore strengthen the respondent's case for allowing the law to take its course in relation to him. 

The undertakings should be given to the Court in writing and signed by him.

I propose, upon receipt of such undertakings, to make that document Exhibit 3 and thereupon I shall order that upon the respondent's giving the undertakings set out in Exhibit 3 the application for an interim detention order be dismissed and the application otherwise be adjourned to the 22nd of December 2004 with costs reserved.  The reservation of costs will include the reservation of the question of whether costs orders are available in these sorts of application.

The document to be prepared for the exhibit should be as per paragraph 2 of the draft which has been provided to me, save that it should begin with words like, "I hereby undertake to the Court as follows."  Appropriate amendments should be made to the geographical places referred in paragraph (a), (b);  paragraph (d) is 100 metres; geographical amendments are required in (f); there is deletion of place of residence in (g) and I think that is the lot.

...

HIS HONOUR:  The order is, that upon the respondent giving the undertakings set out in exhibit 3, order that the application for an interim detention order be dismissed and the application otherwise be adjourned to the 22nd of December 2004, with costs reserved.

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