Attorney-General for the State of Queensland v Fisher

[2009] QSC 104

SUPREME COURT OF QUEENSLAND

CITATION:	Attorney-General for the State of Queensland v Fisher [2009] QSC 104
PARTIES:	Attorney-General for the State of Queensland (applicant) v FISHER, Traven Lee (respondent)
FILE NO:	BS 5070 of 2007
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING  COURT:	Supreme Court of Brisbane
DELIVERED EX	15 April 2009
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2009
JUDGE:	Applegarth J
ORDER:	Pursuant to s 21(6) of the Dangerous Prisoners (Sexual Offenders) Act 2003 that the respondent be released subject to the terms of the supervision order made by Justice Mackenzie on 22 November 2007.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER MATTERS – Dangerous Prisoners (Sexual Offenders) Act 2003 – application for release pursuant to s 21(3) pending final determination of proceedings for an alleged breach of a supervision order – whether there were “exceptional circumstances” under s 21(4) to justify releasing the respondent
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 21
Attorney-General v Francis (2008) 250 ALR 555; [2008] QCA 243, applied Attorney-General v Francis [2008] QSC 69, applied R v Kelly (Edward) [2000] 1 QB 198, considered
COUNSEL:	J M Horton for the applicant B H Mumford for the respondent
SOLICITORS:	Crown Law for the applicant AW Bale & Son for the respondent

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION

APPLEGARTH J

No 5070 of 2007

ATTORNEY GENERAL FOR	Applicant
THE STATE OF QUEENSLAND
and
TRAVEN LEE FISHER	Respondent

BRISBANE
..DATE 15/04/2009
HIS HONOUR: This is the adjourned hearing of an application

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by the respondent to be released pursuant to s 21(3) of the

Dangerous Prisoners (Sexual Offenders) Act 2003.

The respondent is subject to a supervision order made by

Mackenzie J on 22 November 2007. His Honour imposed certain	10
requirements upon the respondent for a period of ten years
after his release: see Attorney General v. Fisher [2007] QSC
341. They include conditions that the respondent comply with
monitoring directions pursuant to which he has been required
to wear a monitoring device. They include a condition that he	20
not commit an indictable offence.
It is appropriate to note the circumstances under which
Mackenzie J came to make that order. His Honour said that the
psychiatrist's evidence presented a concern that the	30
respondent had not benefited to the full extent from programs
which would enable him to confront and understand that serious
sexual offences ought not be committed. His Honour concluded
that until that degree of insight was obtained there was a
risk that the respondent would opportunistically commit such	40
offences if released into the community without a supervision order.
In short, His Honour reached the conclusion that a supervision
order was appropriate because of the respondent's then	50
inadequate understanding of the seriousness of his offences. He thought that the risk might be reduced to an acceptable level; but at the time he made that order in 2007 he thought

1

that the risk was unacceptable. His Honour said,

"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	10
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	20
evidence of the psychiatrists. However, I am satisfied that as the matter stands, a Division 3 order should be made [para 28]".

The immediate background to this application is that on	30
2 March, 2009, the respondent telephoned the co-ordinator of
the electronic monitoring surveillance unit and apparently
informed him that his electronic monitoring bracelet had come
off his leg. An examination on the computer system revealed
that the tamper alert had been activated, and an inspection of	40
the device revealed that one end of the strap was severed with
the securing clip still inside and the other end of the strap
was stretched and twisted. Photographs of the device in that
state appear as "Exhibit RW5" of the affidavit of Mr Waldin,
filed by leave on 3 March, 2009.	50
The matter came before me on 3 March, and an application was made pursuant to s 21(3) to release the respondent pending a final decision. On that occasion I considered that there was

1

insufficient evidence to enable me to determine whether
exceptional circumstances existed, proved on the balance of
probabilities, to permit the release of the respondent pending
a s 22 hearing. I made directions including directions for

the respondent to be interviewed and examined by Dr Lawrence	10
and Dr Harden.
Under s 21 of the Act, it is for the respondent to satisfy me,
on the balance of probabilities, that his detention in custody
pending the final determination is not justified because	20
exceptional circumstances exist.
In Attorney General v Francis [2008] QSC 69, at [7], McMurdo J
addressed the requirement of exceptional circumstances in
s.21(3) of the Act and referred to the authority R v Kelly	30
(Edward) [2000] 1 QB 198 that to be exceptional a circumstance
need not be unique or unprecedented or very rare, but it
cannot be one that is regularly or routinely or normally
encountered. In that case, which has some different
circumstances to this one, His Honour concluded that Mr	40
Francis had demonstrated that there were exceptional
circumstances justifying his release pending a hearing in a
few weeks time. That involved an assessment of risk and the
fact that over the following period of a few weeks that risk
would be less than over a longer period, and because, in that	50
case, Mr Francis was said to have to have the strongest incentive not to breach any of the conditions of his order. In that case, there was a concern about Mr Francis' use of

1

cannabis which was regarded as a serious breach. However, his
Honour considered that was only one matter to be considered in
the overall assessment of whether there were exceptional
circumstances. In that case Mr Francis was required to

undergo testing as directed by the Corrective Services officer	10
and McMurdo J observed that it was possible for him to be tested say every few days in a way that would be sure to detect any use of drugs.
As I have said, the circumstances here do not involve a breach	20
by the use of cannabis, and the applicant's background and circumstances are different from Francis, but McMurdo J's treatment of the issue is relevant in terms of the proper approach to applications under s 21(3).
30
McMurdo J's definition of what constituted exceptional
circumstances was adopted in a later case involving
Mr Francis, Attorney-General of Queensland v Francis (2008)
250 ALR 555 at 566 [41] in which Muir JA also found the
definition that had been given by Lord Bingham in R v Kelly	40
useful for the purpose of s 21(4). Muir JA continued at [45]-

[46]:

"...it is obvious that breaches of supervision

orders may occur in a great many ways. For example, 50

there may be a requirement for the released
prisoner not to go within a stated distance of a
school, not to drink alcohol, not to breach a
curfew, or not to contact a specified person or

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persons. In respect of breaches of conditions such
as these, the existence or non-existence of the
breach and the circumstances in which it occurred,
if it is found to exist, may be determined

promptly, even on the day of arrest. No doubt,	10
there will be many occasions on which the Court
will need to adjourn the matter. But, in some of
those cases, the released prisoner may well be able
to establish the existence of "exceptional
circumstances" on the day of his arrest. Where a	20
breach is trivial or plainly accidental, it may not be difficult for the released prisoner to show "exceptional circumstances".
It is of significance that a released prisoner	30
arrested under s 20 must be brought before the
Supreme Court. Once seized of the matter, the
Supreme Court is able to make orders and directions
calculated to ensure that the final determination
under s 22 and any application for release pending	40
such determination is dealt with expeditiously." (citations omitted)

Mackenzie AJA at 577 [92] said it would be fruitless to

attempt to define what exceptional circumstances might be, but	50
a practical working approach was to be found in the test from Kelly. Fryberg J agreed with the other two members of the Court and added this point at 581 [110]:

"While it is fruitless to attempt to define what
are ‘exceptional circumstances’ within the meaning
of s 21(4) of the Act, one could confidently expect
that a weak case on behalf of the Attorney General

or a contravention of the supervision order which	10
is a trivial contravention would often amount to such circumstances".

I too regard it as a fruitless exercise to attempt to define

what might be exceptional circumstances, but I am guided by	20
what is said in those cases. Many factors will be relevant to an assessment of whether exceptional circumstances exist, being circumstances that one could say are not regular or routine or normally encountered.
30
As indicated by the two decisions involving Mr Francis, one
matter of course is the seriousness of the alleged breach, and
the example is given of a trivial breach constituting
exceptional circumstances. An example of a trivial breach
constituting exceptional circumstances does not mean that the	40
existence of a breach or an alleged breach which is not
trivial precludes an applicant from establishing exceptional
circumstances. All must depend upon the circumstances, but
the more serious the alleged breach, the less likely it is
that exceptional circumstances will be established.	50
The allegation of breach carries with it the consideration of whether the breach is indicative of a risk of further breaches. A further factor is the relationship between the

1

alleged breach and the risk of a serious sexual offence being

committed.

The Court is required to consider whether the circumstances

are exceptional and this requires an assessment to be made of	10
the risk of re-offending. That needs to take account of the
matters that led to making the original supervision order, the
evidence that is before the Court on the occasion of the
s 21(3) hearing, the nature and likelihood of any risk of any
re-offending, and whether the alleged breach is indicative of	20
an increased risk of re-offending beyond that which led to the making of the order in the first place.
I accept the submission made by Mr Horton of counsel on behalf
of the Attorney-General that in a case like this it is not	30
incumbent upon the Attorney-General to show that there
necessarily is an elevation of risk. However, it seems to me
that although it is not necessarily incumbent upon the
Attorney-General to prove that there has been an elevation of
risk, a critical issue is whether the circumstances of the	40
alleged breach do indicate an increased risk of re-offending, and whether the conditions of the supervision order and the general circumstances are apt to address that level of risk.
Finally, and in accordance with what was said by McMurdo J in	50
Francis' case, the duration of the period until the s 22 hearing clearly is relevant to any assessment of risk. Where the final hearing is only a few weeks away, and one might expect the respondent to have a strong incentive not to breach

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the conditions during that period, a different calculus is

involved to the assessment of risk over a much longer period.

I am not required today, nor am I in a position today, to

reach any confident conclusion concerning the circumstances of	10
the alleged breach. They are a matter for determination in
other proceedings, both proceedings for breach and in the
pending hearing under s 22. It is clear, however, that the
evidence establishes that there is a serious question to be
tried concerning deliberate interference with the monitoring	20
device.
Dr Lawrence’s recent report (Exhibit 1 at paragraphs 7.1 to
7.9) gives the respondent's account of the event. I will not
set it out in this judgment. In essence, it gives an account	30
of circumstances in which the respondent encountered difficulty with the device in bed, tried to straighten out his leg, some how got his leg under the bed frame and it was in that circumstance that the device was interfered with.
40
It is important to note that it appears that however the device came to be damaged, the respondent telephoned the electronic monitoring surveillance unit.
There is sufficient evidence to indicate that one distinct	50
possibility is that, contrary to the account given by the respondent, he impulsively and intentionally interfered with the device. Quite properly, Dr Lawrence did not attempt to reach any conclusion on the circumstance under which the

1

monitor came to be broken in March 2009, but I agree with her
observation that the respondent's account of the breaking of
the monitor would appear to be unusual. Although Dr Lawrence

did not comment further, she observed at paragraph 10.9:

"however, it would be consistent with his	10
personality and limitations for him to tinker with a device he obviously finds troublesome".

In this case a supervision order was made which included a

condition that the respondent not commit an indictable	20
offence. In other cases Judges of this Court have taken the
view that the inclusion of such a general condition is
inappropriate given the range of matters which might
constitute an indictable offence. For instance, wilful damage
to property when an individual jumps on the bonnet of a car	30
and damages it, might bespeak lawlessness but may not always
be indicative of a course of re-offending that is likely to
escalate into serious sexual offending. That said, in this
case, there was a condition that the respondent not commit an
indictable offence, and the indictable offence alleged here	40
was not simply one of wilful damage to the bonnet of a car. It involved wilful damage to a monitoring device, and that, in my opinion, puts it into a different category to a simple case of wilful damage.
50
As Dr Lawrence has indicated, one might conclude that the respondent's account of events, whilst unusual, did occur. Another possibility is that he interfered with the monitoring device in early March 2009 because of his frustrations with

1

the device and his lack of maturity and capacity for
reflection as to the consequences of interfering with it.
That said, as was submitted by Mr Mumford of counsel on behalf
of the respondent, if it be the case that the respondent did

wilfully damage the device, soon afterwards he realised the	10
error of his ways and contacted the authorities. This would
tend to suggest that he did not embark upon a pre-meditated
course of events whereby he intended to abscond. However, the
possibility exists that he interfered with it because he
stupidly and without adequate reflection thought that he might	20
travel with a relative to Townsville.
The March episode comes against the background of another
incident involving alleged interference with the device in
September 2008, and that incident places the matter into a	30
different light than one isolated incident of alleged tampering.
The respondent is alleged to have breached one of his
conditions by consuming beer in January 2009. The history of	40
compliance with the supervision order is documented in the material that is under Mr Waldin's affidavit. It is helpfully discussed and summarised in Dr Harden's report.
There have been circumstances in which the respondent has come	50
into conflict with those who supervise him. However, he does not have a history of repeated breaches. As I have indicated, there is one alleged breach by consuming alcohol in January 2009. The breach is addressed in the material, particularly an

1

entry on the 5th of January, 2009, where the respondent
explained to the authorities the circumstances in which a
girlfriend who came over for the night brought some alcohol.
He was upset about a nephew's arrest and he decided to have a

drink. I would not regard that one episode as indicative of	10
anything other than what appears in that report. There does not appear to have been any other circumstances of use of alcohol.
The alleged breaches are consistent with the immaturity which	20
Mackenzie J observed in November 2007, and the personality
traits about which Dr Lawrence and Dr Harden report. He has
difficulty in coming to terms with his circumstances and in
adopting an attitude of compliance with the terms of the
supervision order that has been imposed upon him, and the	30
administration of it by officers who understandably arrive at his home in order to check his compliance.
The respondent notes that Dr Lawrence has reported that the
respondent appears to have been compliant with the requirement	40
of abstinence from alcohol and other drugs, and that these would appear to be a major risk factor in relation to recidivism. Reliance is placed upon Dr Lawrence's opinion at paragraph 10.11 of her report that:
50

"In my opinion, a second apparent breach of alleged tampering or interference with the monitor, did not necessarily increase the risk of re-offending."

Reliance is also placed upon paragraph 10.12 of Dr Lawrence's report where she says:

"In my opinion, a breach through the use of alcohol and

drugs would be a more significant breach of supervisory	10
orders, and one that could increase the risk of possible re-offending at that time."

The submissions by the respondent note that Dr Harden makes a

number of recommendations as to further treatment, but does	20
not make any assessment as to whether the alleged breaches by
the respondent are such as to potentially increase the risk of
re-offending. Dr Harden, like Dr Lawrence, is of the view
that the respondent should be closely monitored by means of a
supervision order if he is to be released into the community.	30
It is said on behalf of the respondent that neither Dr Lawrence nor Dr Harden addressed the notion that the alleged contraventions could give rise to a risk of further breaches.
I have already quoted what Dr Lawrence has had to say. She	40
does not in terms say that the alleged breaches do not increase his risk of re-offending, only that they do not necessarily increase his risk of re-offending.
Ultimately the respondent's counsel submits that the alleged	50
breach is not of the same character that led to the offending behaviour, nor is it of a type that may give rise to concerns about his conduct escalating into concerning behaviour that
may lead to re-offending sexually and/or violently. The

1

submission is made that the alleged breaches can properly be
characterised as trivial, and that in circumstances in which
there is a short space of time, some six weeks, between
today's application and the final hearing, the extent of the

risk must surely be less. Finally it is submitted that the	10
respondent having spent about six weeks in custody already will doubtless have the strongest incentive not to breach any of the conditions of the order.
I am not in a position to make any finding concerning the	20
precise circumstances of the alleged breaches. If the alleged
breaches are proven, I would not regard the circumstances as
trivial. They are not a trivial breach of the kind that could
be imagined in a case, for example, where someone is five
minutes late back on a curfew. My conclusion that the alleged	30
breaches, if established, would not amount to trivial breaches
does not conclude the matter. The circumstances of alleged
breach is consistent, as Dr Lawrence says, with someone whose
personality and limitations on him, prompted him on 2 March
2009 to tinker with a device that he obviously found	40
troublesome. The fact that the respondent promptly contacted
the authorities tends to indicate that the breach was not one
that arose from some premeditated plan to interfere with the
device and abscond, although that possibility cannot be
excluded. As Dr Lawrence says, it may be that he hoped to	50
travel with his brother who was due to leave for Townsville that morning. On the present state of the material though, his contacting

1

the authorities seems inconsistent with a premeditated plan to
abscond. It indicates someone who may have acted stupidly and
impulsively out of frustration, but, having done so, quickly

realised the error of his ways.

10

The protection of the community is the key consideration under the Act, and is an important consideration in deciding whether the circumstances are such as to qualify as exceptional.

As has been said by Dr Lawrence, the alleged breach in this	20
case is not as significant or serious as a breach involving the use of alcohol or drugs, which would be a much more significant breach of supervisory orders, and one that could increase the risk of possible re-offending.
30
The submission is made by the Attorney-General that
exceptional circumstances are not established for three main
reasons. The first is that the circumstances need to be such
as to take the case outside the ordinary course. Here it is
said that the respondent is alleged to have contravened his	40
supervision order and there is nothing to take them outside
the ordinary course. Secondly, it is said that there is only
six weeks until the matter has to be heard substantively,
meaning that the respondent does not have to wait long until
the decision is made by the Court on the available material.	50
Thirdly, the submission is that neither of the psychiatrist's reports suggest the recent alleged contraventions are immaterial. It is noted that Dr Harden seems to suggest that the conduct forms part of a concerning pattern of behaviour by

1

the respondent who sees the supervision restrictions which he

sees as an unnecessary intrusion upon him.

I turn to Dr Harden's report. After a detailed discussion of

the information and the history of the matter and assessment	10
of risk, Dr Harden at page 19 says:

"the underlying psychological constructs associated
with his prior sexual offending continue to be

unknown probably because of a combination of	20
concrete thinking on his part, extreme minimisation and denial and disavow of sexual content and sexual matters."

Dr Harden later says that the respondent: 30

"... maintains that he has a strong desire not to
offend again, however his planning around managing
situations of high risk is in general superficial

or non-existent, and he has continuously struggled	40
against the need for significant restrictions on
his lifestyle when in the community in order to
decrease the risk of future offences. This has
brought him into conflict with the monitoring
authorities to the extent that he has allegedly	50
breached a supervision order and has been reincarcerated."

Dr Harden opines that on the basis of the tests which he

1

administered and his professional judgment, the respondent has
a high risk of sexual re-offence. He says that if he were to
re-offend sexually or violently based on his past behaviour,
he would most likely be impulsive and opportunistic, so

victims would be hard to predict. Dr Harden is of the view	10
that this risk would be increased if the respondent were to be
released from custody without a stringent supervision order
being continued, and that attempts to reduce the risk should
take the form of continued close monitoring and continued
attempts to address ongoing criminogenic needs via appropriate	20
sexual offender treatment involvement.
In conclusion, at page 21 Dr Harden says the respondent has,

“ongoing problems with being compliant with

restrictions required of him in the community, and	30
these difficulties are likely to continue”.

The respondent's history which led to his incarceration and
the making of the supervision order, included an incident of

digital rape of a two year old. This incident was not	40
preceded by any outward warning signs which places this in a different category of case to certain cases in which less opportunistic and more planned offences occur which permit authorities to counter such planning.
50
Accordingly, the picture of risk that emerges is one in which the respondent, unless he matures and addresses his past offending behaviour, is at risk of re-offending unless a stringent supervision order is in place. If a stringent

1

supervision order is not complied with, there is the risk that he will undertake acts of an impulsive and opportunistic kind.

The critical issue is whether exceptional circumstances have

been established in this matter. As I have said, that	10
requires consideration of the nature of the alleged breach,
whether there is a risk of further breaches and the possible
relationship between any such breach and the risk of serious
sexual re-offending. It also includes consideration of the
duration of any risk.	20
I proceed on the basis I have indicated earlier, that although
it is possible that the episode in early March involved
accidental damage to the device, it is more likely than not
that the device was interfered with deliberately. That said,	30
as I have indicated, the respondent soon realised his. It is
likely that his behaviour on that occasion (and if it be
established on the occasion in September), was behaviour which
was consistent with his personality and a preparedness to
interfere with a device that he found troublesome without	40
adequate reflection upon the consequences. Although it is not
necessary to resist an application of this kind for the
Attorney-General to show that there has been an elevation of
risk, it must be said that neither Dr Lawrence nor Dr Hardin
say that the alleged breaches have increased the level of	50
risk. I also accept Dr Lawrence's opinion that a breach through the

1

use of alcohol and drugs would be a more significant breach of
supervisory orders, and one that could increase the risk of
possible re-offending at that time. Although the facts of
this case are different to those in Francis the essential

principles are the same. What is required is a consideration	10
of whether the present circumstances are unusual or not normal, and that requires an assessment of the extent of the risk, and in particular the extent of the risk of further breaches and re-offending over the next month.
20
The Judge who hears the s 22 application will make an informed
assessment of the level of risk that will exist if a
supervision order of the kind made by Mackenzie J continues
for a period of years. My task is to assess the extent of
risk over a period of six weeks which obviously and	30
necessarily poses a reduced risk. It also is incumbent upon
me to consider whether it is likely in the circumstances that
the respondent will have the insight and incentive not to
breach any of the conditions of his order over the next six
weeks.	40
The respondent has been incarcerated since he was taken into custody in early March, that is a period of about six weeks. The material indicates to me that he is someone with
intellectual deficits. It has been said that he has	50
borderline to low average intelligence. However it seems to me likely that even someone with those intellectual limitations who has been incarcerated for six weeks, must have reflected upon what caused his incarceration and have an

1

incentive not to breach the supervision order in the same way
again. His incarceration in recent weeks has taken him away
from contact with a female with whom he's established a
relationship, and surely has reintroduced him to the problems

associated with incarceration.	10
I accept that his past conduct has shown, both through his
immaturity and other factors, that he has difficulty in coming
to terms with compliance with the orders, and that point is
well made by Dr Harden. However, it seems to me that	20
exceptional circumstances are shown in this case because of
the limited risk of further breaches and re-offending. In
circumstances in which the breaches themselves are not said to
necessarily increase his risk of re-offending, I consider that
exceptional circumstances have been shown. It seems likely	30
that the respondent will be subject to close supervision between now and the hearing at the end of May, and that further reduces the risk of re-offending.
Needless to say over the next six weeks the respondent's	40
attitude towards compliance with these orders will be closely
monitored. If over that time he continues to show the kind of
indifference which he has in the past to the need for
supervision, and if he was so stupid as to interfere with the
monitoring device, that may be decisive in the Court's	50
determination of matters at the end of May. My task is not to predict what the outcome of that hearing will be, even if he does not further breach the supervision order, but I consider that it is likely that the respondent has learned a lesson

1

from his last six weeks in incarceration and will have a
strong incentive not to breach any conditions of the

supervision order over the next six weeks.

I conclude that his alleged breach in early March 2009 was not	10
a precursor to further sexual re-offending, as serious as that
breach may be. The alleged breach is not of the same
character as the kind of offending behaviour that led to the
supervision order. It is a matter of obvious concern.
However, in all the circumstances I consider that his risk of	20
re-offending over the period of six weeks is one that is acceptable in all the circumstances for that period. In circumstances where he has not breached the order by the consumption of alcohol or drugs, there is an acceptable risk.
In the circumstances, although this is not an alleged trivial	30
breach, he has established exceptional circumstances.
Accordingly, I order pursuant to s 21(6) of the Act that the
respondent be released subject to the terms of the supervision
order made by Mackenzie J on 22 November 2007.	40

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