Attorney-General (Qld) v Fardon

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SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Fardon [2018] QSC 193

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
ROBERT JOHN FARDON

(respondent)

FILE NO/S:

SC No 5346 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2018

JUDGE:

Jackson J

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – OTHER TYPES OF POST-CUSTODIAL ORDERS – OTHER MATTERS – Dangerous Prisoners (Sexual Offenders) Act 2003 – where respondent is subject to supervision order – where application for the court to set a date for hearing an application for further supervision order – where psychiatric evidence is that respondent’s risk of violent sexual offending is in the low range and there is not a significant risk of sexual reoffending – where applicant submits that magnitude of any reoffending could be horrendous – where applicant submits that without supervision order respondent will not have the sanctuary of the precinct to return to – where applicant submits that without supervision order respondent would not have access to continuing psychological treatment – where applicant submits that without supervision order respondent does not have accommodation – where respondent has not contravened current supervision order – whether there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of a further supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 8, 19B

Attorney-General (Qld) v Fardon [2003] QCA 416, cited
Attorney-General (Qld) v Fardon [2003] QSC 200, cited
Attorney-General (Qld) v Fardon [2003] QSC 331, cited
Attorney-General (Qld) v Fardon [2003] QSC 379, cited
Attorney-General (Qld) v Fardon [2005] QSC 137, cited
Attorney-General (Qld) v Fardon [2006] QCA 512, cited
Attorney-General (Qld) v Fardon [2006] QSC 336, cited
Attorney-General (Qld) v Fardon [2007] QSC 299, cited
Attorney-General (Qld) v Fardon [2011] QCA 111, cited
Attorney-General (Qld) v Fardon(No 2) [2011] QSC 128, cited
Attorney-General (Qld) v Fardon [2011] QCA 155, cited
Attorney-General (Qld) v Fardon [2013] QCA 16, cited
Attorney-General (Qld) v Fardon [2013] QCA 299, cited
Attorney-General (Qld) v Fardon [2013] QCA 64, cited
Attorney-General (Qld) v Fardon [2013] QSC 12, cited
Attorney-General (Qld) v Fardon [2013] QSC 264, cited
Attorney-General (Qld) v Fardon [2014] 2 Qd R 532, cited
Attorney-General (Qld) v Fardon [2015] QSC 20, cited
Attorney-General (Qld) v Nemo, unreported, Martin J, SC No 2341 of 2008, 30 April 2018, considered
George v Rockett (1990) 170 CLR 104, applied

R v Fardon [2010] QCA 317, cited

COUNSEL:

P Dunning QC S-G and J Rolls for the Applicant

D O’Gorman SC for the Respondent

SOLICITORS:

Crown Law for the Applicant

Patrick Murphy Solicitor for the Respondent

Jackson J:

  1. This is an unusual application for the court to set a date for the hearing of an application for a further supervision order…

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Details
Case
[2018] QSC 193
Decision Date

CaseChat Overview and Summary

In the case of Attorney-General (Qld) v Fardon, the applicant, the Attorney-General of Queensland, sought to establish reasonable grounds for believing that the respondent, Fardon, would present a serious danger to the community if not subject to a further supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003. The Queensland Court of Appeal was tasked with determining whether the applicant had demonstrated that there were reasonable grounds to believe the respondent would pose a serious danger to the community if the current supervision order was not extended. The case hinged on the interpretation of Dr Beech’s psychiatric report and the respondent's potential risk of violent sexual reoffending.

The court needed to decide whether Dr Beech’s report, which indicated a low risk of violent sexual reoffending and no significant risk of sexual reoffending, supported the applicant's contention that there were reasonable grounds for believing the respondent was a serious danger to the community in the absence of a further supervision order. The applicant argued that despite the low risk, the potential magnitude of any reoffending could be horrendous, and without a supervision order, the respondent would lack the sanctuary of the precinct, access to continuing psychological treatment, and accommodation. The court had to balance these arguments against the psychiatric evidence provided.

The court concluded that Dr Beech’s report, taken as a whole, did not indicate an unacceptable risk of reoffending. The court emphasized that "unacceptable" involves a value judgment and that it is impossible to be certain that there is no risk where a respondent has committed a serious sexual offence in the past. The court found that the applicant had not demonstrated reasonable grounds for believing that the respondent would be a serious danger to the community in the absence of a further supervision order, as there was no evidence of non-cooperation by the respondent that would affect the risk assessment. Therefore, the application was dismissed.

The court ordered that the application be dismissed, finding that the applicant had not shown reasonable grounds for believing that the respondent was a serious danger to the community without a further supervision order.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Whilst none of the second, third or fourth matters relied upon by the applicant is expressly considered by Dr Beech, the applicant did not seek to obtain his opinion on any of those matters. In the result, in my view, they should not be treated as matters that operate outside the scope of Dr Beech’s opinions, as set out above. Conclusion In the end, the applicant submits that Dr Beech’s report, taken as a whole, and having regard to the altered circumstances that would operate at the end of the second supervision order, does not show that there are not reasonable grounds for believing that the respondent presents an unacceptable risk to the community. In my view, there are two answers to that proposition. First, I consider that Dr Beech’s views do support the contrary conclusion, noting that “unacceptable” must always involve a value judgment by the court, that the court can never be satisfied that there is no risk where a respondent has committed a serious sexual offence in the past, and the need to protect members of the community from the risk of another serious sexual offence, as matters that inform whether the applicant has shown reasonable grounds for believing that the respondent is a serious danger to the community. Second, the way the applicant puts this submission inverts the altered s 8 question. The true question is whether the applicant has shown that there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of a further supervision order. In oral submissions, the applicant made the further submission that at a final hearing of an application under s 13 as altered, it would be relevant for there to be a closer analysis of how much the cooperation and assistance of the respondent has been what it ought to be. In my view, that question would only be relevant if it went to the ultimate critical question on such an application, namely whether the respondent is a serious danger to the community. Although it was said in one of the cases involving the applicant that a supervision order has “the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a regime of tight control”,[39] there is no undertaking or agreement by a prisoner that forms any part of a relevant “compact” provided for by the Act, unlike a bail undertaking or a probation order. A supervision order does impose a tight regime of control, but there is nothing consensual about it under the Act.[39] Attorney-General (Qld) v Fardon [2011] QCA 155, [29] In any event, there is no evidence identified on the hearing of this application that the respondent has failed to cooperate in some relevant way that goes to whether the applicant has shown there are reasonable grounds for thinking that the respondent is a serious danger to the community in the absence of a further supervision order. For the reasons I have given, in my view, the applicant has not done so. The application must be dismissed.

Ratio Decidendi

Legal Principle Established

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