Attorney-General for the State of Queensland v. Fisher

[2007] QSC 212

[2007] QSC 212

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

WHITE J

No 5070 of 2007

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

BRISBANE

..DATE 31/07/2007

JUDGMENT

HER HONOUR: This is the matter of Attorney-General for the State of Queensland and Traven Lee Fisher for judgment. The Attorney-General has applied to the Court for an order pursuant to section 8(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 that the respondent Traven Lee Fisher undergo examination by two psychiatrists who are to prepare reports in accordance with section 11 of the Act.

The threshold question before such an order may be made is in section 8(1), namely the Court must be satisfied that there are reasonable grounds for believing the prisoner is a danger to the community in the absence of a supervision order on release or a continuing detention order at the expiration of his sentence.

The respondent is now 23 years old.  His scheduled release date is the 23rd of November 2007.

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HER HONOUR:   The respondent is serving a term of imprisonment of four years and six months for rape, robbery, five counts of assault occasioning bodily harm and indecent assault.  Whilst on bail for all the offences except the robbery he committed the robbery with personal violence.  He pleaded guilty to all charges.  His recorded criminal history prior to the conviction for these offences commenced when he was about 15 with the unlawful use of a motor vehicle and progressed through relatively minor street and stealing type offences. 
The circumstances surrounding the present offences I have taken from the report prepared by Dr Michael Beech, a psychiatrist, dated the 9th of December 2006.  Dr Beech interviewed and assessed the respondent to assist the Attorney-General in deciding whether to seek an order under the Act. 

The rape offence related to the then two year old daughter of the respondent's defacto partner, who told police that she had been in a defacto relationship that was violent.  She said that she herself had been assaulted by the respondent.  He had taken over the care of her children and she was prevented from dressing, bathing or scrutinising them closely.  Three weeks prior to the complaint to the police she said she had woken in the morning to see her two year old daughter had bloodstains and a large blood clot in her underpants.  The child indicated that she had been interfered with by the respondent.  Medical examination showed a tear of the girl's fourchette extending toward the anus.

The assault charges referred to the defacto partner's three children, then aged six months, two years and four years.  She told police that the respondent had been biting her children and subsequent investigations showed that the children had a number of injuries including bite marks, subconjunctival haemorrhages, bruising and burns.

The indecent assault involved an 18 year old woman.  She told police that she had been seated outside the entrance to a nightclub and a group of three Aboriginals approached her and asked for a cigarette.  The respondent was one of that group and made a sexual reference to one of her friends.  As the girl spoke on a telephone he approached her and placed his hand on her right breast and squeezed it and then something of a melee seems to have occurred.

The robbery offence involved a young woman who was walking across a park late at night.  She was accosted by the respondent who came up behind her, covered her mouth and nose with his hand and placed his other hand around her throat.  He pushed her to the ground, lay on top of her and hit her seven or eight times as he pressed her face against the ground.  She rolled over onto her back and he punched her two or three times on her head and face before grabbing her arms, forcing them above her head.  He then took her mobile phone and her handbag and ran off through the park.

It is clear the sexual assault outside the nightclub is of a relatively mild kind although no doubt most unpleasant for the person concerned. 

The respondent has managed reasonably well in prison, according to the reports.  He has completed the high intensity sexual offending program which took place from the 1st of June 2005 until the 16th of March 2006.  Amongst the extensive material which has been read on today's application is a post participation report relating to the respondent's participation in that program. According to the report, the purpose of the program is to treat sexual offenders who are identified as at high risk of sexual re-offending.  The goal is to facilitate cognitive and behavioural change in ways that are directly linked to offender's individual risk, needs and responsivity factors to enable them to manage and reduce their risk of sexual re-offending.

A major stumbling block for the respondent's successful response to the program is his borderline low average mental capacity. He had difficulty in understanding the program's concepts but nonetheless the report described intermittent improvement.  In times of stress it is noted in that report that he resorted to aggression to manage his negative moods.

The following passage appears in the report and it is a passage which Dr Beech has quoted within his report.  It appears at page 7:

"Several times during the program he acknowledged experiencing deviant sexual fantasy and arousal with regard to his child victim however this apparent positive shift in stance was incongruent with his continued denial of any sexual intent in his offending against the child.  It may be that these acknowledgements were a result of over-enthusiastic assistance from other group members with his written work."

Mr Beech's assessment, which is contained in his report, is not an assessment under the Act but nonetheless is of assistance in deciding whether such assessments as provided for in an assessment order ought to be made.

Mr Fenton for the respondent has criticised Dr Beech's report. He submits this is because Dr Beech does not differentiate between the risk of violent re-offending and the risk of offending of the kind covered by the Act.

A prisoner is a serious danger to the community if there is an unacceptable risk that he will commit a serious sexual offence if either released or released without a supervision order.  A serious sexual offence is an offence of a sexual nature either involving violence or against children.

As is quite apparent from the description which I have taken from Dr Beech's report, the subject offences do not all fall within that description. The rape clearly does.  The assaults against the children would not seem to, nor would the violent robbery, and I have commented on the indecent assault.

Dr Beech assessed the respondent clinically and by the administration of a number of risk assessment instruments well known in this field.  The respondent scored highly on the psychopathy checklist for recidivism but not nonetheless within the range of psychopathy.  On the sexual offender risk appraisal guide to measure sexual violence, Dr Beech gave the respondent a score of 21.  With this score a person has a probability of violent recidivism of 0.58 at seven years and 0.8 at ten years.

On the violence risk appraisal guide an actuarial tool for the risk of violence recidivism the respondent scored 16 which generally suggests a probability of recidivism of 0.55 at seven years and 0.64 at ten years.  On the HCR-20 test to measure risk of violence the respondent scored 23 out of 40.  He scored highly on historical items, plans that lacked feasibility, exposure to destabilising factors and lack of personal support.  He scored for impulsivity and limited insight.  On the Static 99 assessment for sexual recidivism the respondent was scored at six.  People with this score are placed in the high risk category.

Dr Beech concluded, at page 12 of his report:

"In my opinion Traven Fisher has an antisocial personality disorder (DSM4TR301.7) which may have arisen from childhood attention deficit hyperactivity disorder (DSM4TR314.01). His impulsivity may reflect continued residual symptoms of hyperactivity now associated with a vulnerability to inappropriate behaviour and at times threatening behaviour, as noted in his treatment report. Nonetheless in a structured setting such as a prison his behaviour has apparently been reasonably acceptable and he has made use of the programs in developing some insight. There is certainly evidence that his general behaviour has improved over the period of his incarceration which may reflect both the structure of the prison as well as general maturation with age and the results of quite intensive cognitive therapy."

Dr Beech concluded:

"In my opinion Traven Fisher should be seen as having at least a moderately high and probably a high risk of re-offending. Put simply, he is an impulsive young man, prone to aggression or violence with a long history of offending behaviour who still has limited insight into his offending and who lacks feasible plans for the future."

Dr Beech continued that if released in the current circumstances he would be exposed to a number of destabilising agencies including poor supervision within his family, association with anti-social elements and probable relapse into substance abuse.  Under those circumstances, Dr Beech opined that he would be likely to react in an impulsive and aggressive manner.  And that accordingly many of the gains that he seems to have made in treatment programs would falter.

It is unnecessary to deal with the final recommendation of
Dr Beech because that is not the purpose of this application.  

Even accepting Mr Fenton's criticism of what he sees as the blurring of the violence and sexual offending elements in the respondent's conduct the results of the tests do show high risk results for violence and, separately, sexual offending.  The respondent's criminal conduct has escalated and his impulsivity and aggression are still present. 

Notwithstanding evident improvement in the respondent's insight, the act of penetration of the two year old was a very violent act of a sexual nature and it is appropriate that psychiatrists qualified in risk assessment prepare reports because there are, in my view, reasonable grounds for believing the respondent is a serious danger to the community in the absence of a division 3 order.

I note that Mr Fenton also submitted that the protection afforded by the Child Protection Offender Reporting Act of 2004 which will apply to the respondent on release would be sufficient to protect the community from the risks which Mr Fenton quite properly concedes are present on the material before the Court.  That may be a matter that the psychiatrists can address but in the absence of any concrete proposals about the respondent's post prison life and the likelihood of compliance with the provisions of that Act I feel I cannot conclude that those provisions would be likely to address the risk of danger to which I have adverted and which is the subject of the legislation under consideration. 

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HER HONOUR:  Well that will be order as per draft as I have - it has been amended. 

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