Attorney-General (SA) v Fitzpatrick
[2019] SASC 143
•14 August 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Criminal)
ATTORNEY-GENERAL (SA) v FITZPATRICK
[2019] SASC 143
Judgment of The Honourable Justice Hughes
14 August 2019
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
Pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA), the Attorney-General (SA) made an application for an extended supervision order in relation to the respondent. Pending the determination of the application for an extended supervision order, the Court made an interim supervision order in relation to the respondent on 6 February 2019. On the same day, the Court ordered medical reports addressing the respondent’s risk of future sexual reoffending. The medical reports have since been received and the question of the imposition, conditions and duration of an extended supervision order falls to be determined.
The respondent conceded that he is a high risk offender within the meaning of Criminal Law (High Risk Offenders) Act. However, he objected to the conditions and duration of the order proposed by the Attorney-General. The Attorney-General is seeking an extended supervision order of three years duration, with conditions to include electronic monitoring and a curfew.
Held, the respondent is to be subject to an extended supervision order with various conditions, including a condition for a curfew but without electronic monitoring, for a period of 2 years and 6 months from the date of the order.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 4, 7, 10, 11, 12, 13, referred to.
Attorney-General v Wells [2017] SASC 149, considered.
ATTORNEY-GENERAL (SA) v FITZPATRICK
[2019] SASC 143HUGHES J:
The Attorney-General applied for an extended supervision order in relation to Ryan Fitzpatrick pursuant to the Criminal Law (High Risk Offenders) Act 2015 (“the Act”). The making of the order was not opposed. He is a high risk offender within the meaning of that term in the Act. Two medical reports supported the proposition that Mr Fitzpatrick poses an appreciable risk to the safety of the community if not supervised. Having read the affidavit of Timisha Ward affirmed on 31 January 2019, the Attorney-General’s summary of argument dated 4 February 2019, and the medical report of Dr Catherine Crouch dated 17 May 2019, I am satisfied that an order for extended supervision should be made.
Mr Fitzpatrick disagrees with the duration and the conditions of the order proposed by the Attorney-General. For the reasons that follow, I would impose an order for two years and six months, with most but not all of the conditions to which Mr Fitzpatrick is currently subject under an interim supervision order.
Background
In 2016, Mr Fitzpatrick pleaded guilty to the indecent assault and digital rape of a 15 year old girl. At the time of the offending, he was 34 years old. The offending occurred in 2015 when Mr Fitzpatrick was sleeping overnight at his friend’s fiancé’s house. The victim was the fiancé’s younger sister. The offending took place while the victim was asleep, though she woke up when it occurred. Mr Fitzpatrick was on the ANCOR register at the time of the offending. He admitted to the offending immediately. He was sentenced to three and a half years imprisonment (reduced from five years for his early plea) with a non-parole period of 20 months.
The earlier offending that had led to Mr Fitzpatrick being on the ANCOR register was an act of gross indecency in 2011. His partner at that time saw him masturbating whilst standing close to her 10 year old daughter one night when she was asleep in her bedroom. Mr Fitzpatrick’s partner reported the offending to police. He pleaded guilty and received a suspended sentence upon entering an 18 month bond. A condition of the bond was that he was required to complete a child sexual offender treatment program at Owenia House.
Paramountcy of the safety of the community
Section 7(5) of the Act mandates that the paramount consideration in determining whether to make an order must be the safety of the community. As the conditions create the efficacy of the order, that paramountcy operates on the choice as to which conditions should be imposed.
Evidence regarding the nature and extent of the risk posed
In considering the nature of the conditions to be imposed, the medical reports provide the Court with expert guidance in the offender’s past and likely future behaviour. In his report of 16 May 2016, Dr Brereton, Forensic Psychiatrist, wrote:
Mr Fitzpatrick’s thinking with regards to his sexual behaviour has both an aspect that is protective against reoffending but also a pattern of thinking that adds to his risk. I was left in no doubt, following our interviews, that Mr Fitzpatrick acknowledges his offending behaviour as wrong. He does not condone or seek to justify offending against minors. He did not try to shift blame onto the victim and he did not display any of the cognitive distortions that are often present in offenders and which facilitate their offending. He is aware of the detrimental effects his offending has had on the victim and the wider implications of his offending on other individuals such as his son. Despite this however, by his own admission, Mr Fitzpatrick has reoffended and the offending escalated to contact offending. My concern about Mr Fitzpatrick’s view of his offending is his tendency to distance himself from responsibility insofar as he attributes his behaviour to some mental disorder which, if properly identified, could be fixed. In this, he demonstrates an external locus of control. In essence, rather than understanding the extent of his responsibility for his offending and thereby actively and practically addressing his risk, Mr Fitzpatrick tends to see himself in a passive role where his behaviour is the produce of pathology that ought to be identified and then resolved. This significantly reduces his ability to manage his own risk.
[…]
Mr Fitzpatrick would be unlikely to reoffend in the short term (months to years) – given his remorse and his strong motivation to avoid prison, which has exacerbated his anxiety and tendency towards a low mood. However his medium to long-term (years to decades) risk of reoffending is substantial given his external locus of control, poor emotional regulation, and difficulty in his adult relationships.
Dr Brereton concluded that the risk presented by Mr Fitzpatrick could be addressed with psychological therapy “provided he fully engaged.”
Dr Crouch, Forensic Psychiatrist, provided a report to the Court dated 17 May 2019 for the purpose of the Court’s consideration of whether to impose an extended supervision order. She opined that Mr Fitzpatrick’s dynamic risk factors included his tendency to act impulsively, his history of unstable intimate relationships and hostility to women and poor emotional regulation. She concluded that Mr Fitzpatrick:
[P]resents as a low risk of future sexual offending in the short to medium term (next two years). His poor emotional regulation, poor coping skills and impulsiveness mean that without continued treatment his risk could escalate in the future. Any use of alcohol or illicit substances by Mr Fitzpatrick, would impair his judgement, his ability to challenge his thoughts and utilise self-control, thus resulting in an increased risk. I am of the opinion that Mr Fitzpatrick’s risk of future serious sexual offending […] is low in the short term, but likely moderate in the medium to longer term. This is on the proviso that he maintains the current lifestyle changes he has implemented and receives ongoing treatment.
Mr Fitzpatrick has committed two serious crimes against children. Relevant to the likelihood of compliance with the order, Mr Fitzpatrick has no other history of offending and has not breached any order or condition imposed upon him except insofar as the commission of the second offence which occurred whilst he was registered with ANCOR. He has strong familial support.
Conditions
The Act provides for conditions of extended supervision in several ways. There are mandatory conditions imposed by the Act, conditions that may be imposed by the Court in its discretion, and conditions that may be imposed by the Parole Board on an extended supervision order once it has been made. The relevant provisions of the Act are as follows:
10—Supervision orders—terms and conditions
(1) The following conditions apply in relation to an extended supervision order:
(a)a condition that the person subject to the order not commit any offence;
(b) a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm;
(c) a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
(d)a condition that the person subject to the order—
(i)be under the supervision of a community corrections officer; and
(ii)obey the reasonable directions of the community corrections officer; and
(iii)submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;
(e) any other condition that the Court thinks fit and specifies in the order;
(f) any condition imposed by the Parole Board under section 11.
(2)The conditions referred to in subsection (1)(a) to (e) (inclusive) apply in relation to an interim supervision order.
(3)The Supreme Court may only vary or revoke the condition imposed by subsection (1)(b) if the Court is satisfied that—
(a) there are cogent reasons to do so; and
(b)the possession of the firearm, ammunition or part of a firearm by the person does not represent an undue risk to the safety of the public.
(4) The Supreme Court must, on making or varying a supervision order—
(a)take all reasonable steps to explain to the person the subject of the order the terms and conditions of the order and, in particular—
(i)the person's obligations under the order; and
(ii)the consequences that may follow from a failure to comply with the order; and
(b)forward a copy of the order as made or varied to the Parole Board and to the Commissioner of Police.
11—Conditions of extended supervision orders imposed by Parole Board
(1)Without limiting section 10(1)(f), the Parole Board may (for example) impose a condition on an extended supervision order—
(a) requiring the person subject to the order to—
(i)reside at a specified address; or
(ii)undertake such activities and programs as determined from time to time by the Board; or
(iii)be monitored by use of an electronic device; or
(b)providing that a community corrections officer or police officer may, at any time—
(i)visit the person subject to the order at the person's residential address; and
(ii)access any computer or related equipment that is at the person's residential address or in the possession of the person,
and, for that purpose, enter the premises at that address; or
(c) prohibiting or restricting the person subject to the order from—
(i)associating or communicating with a specified person or persons of a specified class; or
(ii)residing or being present at, or being in the vicinity of, a specified place or premises or a place or premises of a specified class; or
(iii)possessing a specified article or weapon, or articles or weapons of a specified class; or
(iv)engaging in specified conduct, or conduct of a specified kind; or
(v)undertaking specified employment or employment of a specified kind; or
(vi)applying for a change of name; or
(vii)engaging in any other conduct of a kind specified by the Board.
(2)The Parole Board may, on application by the Attorney‑General or the person subject to an extended supervision order, or of its own motion, vary or revoke a condition of the order imposed by the Board or impose further conditions on the order.
(3)The Parole Board must, on imposing a condition or further condition on, or on varying or revoking a condition of, an extended supervision order—
(a)provide the person the subject of the order with a copy of the order as varied by the Board; and
(b)take all reasonable steps to explain to the person the subject of the order the terms and conditions of the order and, in particular—
(i)the person's obligations under the order; and
(ii)the consequences that may follow from a failure to comply with the order; and
(c)forward a copy of the order as varied by the Board under this section to the Supreme Court and the Commissioner of Police.
(4)The Parole Board cannot exercise its powers under subsection (1) or (2) of its own motion in relation to a person subject to an extended supervision order unless the person and the Attorney‑General have been afforded a reasonable opportunity to make submissions to the Board on the matter, and the Board has considered any submissions so made.
(5)For the purposes of proceedings under subsection (1) or (2), a member of the Parole Board may summon the person the subject of the proceedings to appear before the Board.
(6)If a person who has been summoned to appear before the Parole Board fails to attend in compliance with the summons, the Board may—
(a) determine the proceedings in his or her absence; or
(b) direct a member of the Board to—
(i) issue a warrant; or
(ii) apply to a magistrate for a warrant,
for the apprehension and detention of the person for the purpose of bringing him or her before the Board.
(7)A magistrate must, on application under this section, issue a warrant for the apprehension and detention of a person, unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant.
(8)The Parole Board may, if it thinks good reason exists for doing so, cancel a warrant issued under this section at any time before its execution.
The Attorney-General proposed that the conditions to be imposed on Mr Fitzpatrick replicate those that were imposed by Kelly J on the making of the interim supervision order on 6 February 2019. Those conditions were:
2.1. the Respondent will not commit any offence;
2.2. that the Respondent is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm;
2.3. that the Respondent is prohibited from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
2.4. That the Respondent will:
2.4.1. be under the supervision of a Community Corrections Officer; and
2.4.2. obey the reasonable directions of that Community Corrections Officer; and
2.4.3. submit to such tests (including testing without notice) for gunshot residue as the Community Corrections Officer may reasonably require;
3. the Respondent will not depart from or attempt to depart from the State of South Australia without obtaining the written approval of the Parole Board at least seven (7) days prior to travel;
4. the Respondent will reside at an address that has been approved by the Parole Board, and will not change his residence without prior approval from the Parole Board;
5. the Respondent will wear an electronic monitoring device, and comply with the rules of electronic monitoring, as an d when required by his Community Corrections Officer or the Parole Board;
6. the Respondent will be subject to a curfew and is to remain in his residence between 9pm and 6am, and he will present to police, a Community Corrections Officer or such person as is authorised to conduct a curfew check at his front door on request;
7. the Respondent will maintain a telephone service for the duration of this order and provide his Community Corrections Officer with the phone number(s);
8. the Respondent will take all steps necessary to comply with the requirements of the Australia National Child Offender Register (ANCOR);
9. the Respondent will not provide or offer accommodation to a child who is not related to them by blood or marriage or of whom do not have lawful custody;
10. the Respondent will not loiter without reasonable excuse, at or in the vicinity of a school, public toilet, playground of place at which provides recreational, social, educational or other facilities for children;
11. the Respondent will not contact, attempt to contact or associate in any way, whether directly or indirectly, any person under the age of sixteen (16) years, unless his Community Corrections Officer is present, or a person nominated by his Community Corrections Officer is present, or a person nominated by his Community Corrections Officer is present unless otherwise approved by the Parole Board. For the avoidance of doubt, this condition does not prohibit where it is necessary and incidental to the respondent performing essential activities of daily living, for example shopping at a supermarket and travel on public transport;
12. the Respondent will not access child pornography material either by the internet or any other media;
13. the Respondent will not contact, attempt to contact or associate in any way, whether directly or indirectly, with the victim of his offence, or any member of the victim’s immediate family;
14. the Respondent will not consume alcohol;
15. the Respondent will not enter or remain upon the premises of any licensed hotel or licensed entertainment venue without the prior approval of his Community Corrections Officer;
16. the Respondent will not use, possess or administer any illegal drug at any time, and will only use, possess or administer prescription drugs in accordance with the directions of a legally qualified medical practitioner;
17. the Respondent will advise his Community Corrections Officer of any drug that has been prescribed to him by a legally qualified medical practitioner;
18. the Respondent will present for drug and alcohol testing as and where directed by his Community Corrections Officer, or the Parole Board, and will do all things and sign all such forms as may be necessary to enable drug and alcohol testing to be conducted and analysed and the results of such analysis provided to his Community Corrections Officer;
19. the Respondent will attend and undertake assessments and treatment in relation to the reduction of his risk of sexual reoffending as directed by his Community Corrections Officer or as ordered by the Parole Board.
Mr Fitzpatrick has been subject to those conditions in the community since his release on 16 February 2019. This is important for two reasons. Firstly, the parties have had an opportunity to observe the operation of the conditions. Secondly, insofar as the duration of the extended supervision order needs to be fixed, the period in relation to which Mr Fitzpatrick has already been subject to the conditions is a relevant factor.
Mr Fitzpatrick submitted that in light of the period to which he has already been subject to the conditions, the Court should impose only those conditions mandated by the Act, and leave further conditions to be imposed by the Parole Board under s 10(1)(f) if it considers it necessary to do so.
The scheme of ss 10 and 11 contemplates that in addition to the mandatory conditions, the Court may impose conditions as it sees fit and that that the Parole Board might impose additional conditions, but that it may not vary or revoke those conditions imposed by the Court, although the Court may revoke or vary any condition of an order on the application of the Attorney-General or the offender. Having reposed in the Court the power to impose conditions, it will usually be appropriate for the Court to impose any conditions that are necessary at the time of the making of the order to secure the safety of the community. The conferral on the Parole Board of the power to impose new conditions and vary those conditions is an acknowledgement that the risk presented by the offender may increase over the duration of the order and the Board may be best-placed to quickly respond to such a change.
I am not satisfied that the mandatory conditions alone are sufficient to secure the safety of the community in relation to the risk presented by Mr Fitzpatrick. It is appropriate to consider the other proposed conditions, with particular focus on those that Mr Fitzpatrick specifically objects to.
The imposition of the requirement that Mr Fitzpatrick not leave the State without approval, and reside at an approved address during supervision, are evidently necessary to ensure that he remains within monitored boundaries. I will impose those conditions.
Electronic monitoring
The respondent objected to the proposed condition of electronic monitoring. He has been subject to this condition for the duration of the interim order. He submitted through his counsel, Mr Lutt, that it had deleterious consequences in terms of social and employment interactions that outweighed its value. Mr Lutt contended that there had been a period of electronic monitoring and that there had been no evidence of behaviour that was revealed by electronic monitoring. Further, the past offending had not been committed in circumstances that would have been prevented by electronic monitoring.
Mr Fitzpatrick has been subject to electronic monitoring for approximately six months. Whilst I note the inconvenience to Mr Fitzpatrick and acknowledge the possibility that the wearing of the bracelet may have reduced his job prospects and caused him to socially withdraw, those reasons have not been determinative of my decision.
Mr Soetratma for the Attorney-General described the electronic monitoring, along with the curfew and the reporting obligations and the requirement not to leave the state as the enforcement equipment relied upon to support the protective conditions. The protective conditions are those that are directed at avoiding Mr Fitzpatrick coming into contact with children other than incidentally or with the permission of his Community Corrections officer.
I accept that the Department for Correctional Services’ responsibility for enforcement requires mechanisms to perform its functions effectively. There was no submission to the Court that electronic monitoring performed a particular purpose in relation to Mr Fitzpatrick. I am not satisfied that electronic monitoring has been shown to be necessary in his case, particularly now that he has been subject to it for six months without incident. I would decline to order electronic monitoring. If circumstances change such that the Parole Board considers that electronic monitoring would address his risk, that condition may be imposed during the course of the order.
Curfew
Mr Fitzpatrick also opposed the imposition of the curfew, though not as strongly. In contrast to the electronic monitoring, it is possible to immediately see how the curfew might operate directly on the risk presented by Mr Fitzpatrick. Both of Mr Fitzpatrick’s previous offences occurred at night when the victims were asleep. I consider that the curfew is appropriately targeted at the risk of future offending by reference to the past offending. I would impose a curfew in the terms proposed by the Attorney-General. I have considered and rejected the option of imposing the curfew for only a particular portion of the overall duration of the order. The medical evidence currently states that the risk posed by Mr Fitzpatrick will increase over the next few years. In those circumstances, I am not willing to withdraw one of the protective measures that targets a specific risk after a specified period. If Mr Fitzpatrick considers after a relevant period of time that the risk has not increased, he may apply to the Court to vary the order in respect of the curfew.
The requirement to maintain a telephone service is an appropriate obligation to enable the Department to monitor Mr Fitzpatrick’s compliance and I would impose such a condition upon him. The requirement that he take all reasonable steps to comply with his ANCOR obligations is directed at ensuring that the two sets of obligations operate coherently together and I would impose such a condition to achieve that.
Interactions with minors
Several of the provisions curtail, in some cases severely, Mr Fitzpatrick’s freedom of movement and his dealings with young people. These conditions, such as the prohibition against loitering at schools and public playgrounds, are directly targeted at the offending behaviour and were not opposed by Mr Fitzpatrick.
However, he objected to proposed condition 2.13 which prohibits him from contacting, attempting to contact or associating, indirectly or directly, with any person under the age of sixteen except with permission or where such contact is incidental to the performance of an essential activity of daily living. It was suggested that this is interfering with Mr Fitzpatrick’s interaction with his son (who is now about thirteen) because he cannot interact with his son’s friends. I reject this as a reason for not imposing such a condition. Proposed condition 2.13 is the condition most directly addressing the risk to children who may otherwise be victims of any future offending. Mr Fitzpatrick’s son’s age places his friendship cohort exactly in the age group of Mr Fitzpatrick’s most recent victim. This condition is critical to the effectiveness of the order.
Remainder of the conditions
I would impose the proposed condition prohibiting Mr Fitzpatrick from accessing child pornography. I would impose the prohibitions relating to drugs and alcohol, and the testing therefore, and the conditions regarding prescription drugs. I would impose the condition regarding counselling for substance abuse and any other assessments or programs that the Community Corrections Officer might require. Mr Fitzpatrick was affected by alcohol when he committed the offence. However, with that prohibition in place I see no utility, in terms of the risk posed, on a prohibition on Mr Fitzpatrick’s attendance at a licensed hotel or entertainment venue. He is not permitted to consume alcohol at such a place and could not attend if minors were present (unless approved) because of proposed condition 2.13.
I would impose the prohibition on his contacting the victim of his offending or her family. I would impose the requirement that he submit to sexual reoffending reduction programs. The Court was advised that he has, in accordance with this condition on the interim supervision order, already undertaken about five sessions with a counsellor.
Mr Lutt invited the Court to consider whether, in respect of one or more of the more onerous conditions, it may be appropriate to impose them for a portion only of the overall order. The Court has previously taken such an approach where it was appropriate to do so.[1] In this instance, I do not consider that the state of the evidence is such to provide a sufficient basis for this approach. Some of the conditions operate only to the extent of the direction of the Community Corrections Officer and this will provide some scope for the relaxation of them if the risk is observed to be reducing. That reduction may be a matter about which the Department or Mr Fitzpatrick may wish to seek fresh medical evidence in due course.
[1] Attorney-General v Wells [2017] SASC 149 per Hinton J.
Duration of the order
Having identified the appropriate conditions, the question of the duration of the order can be considered. This aspect of the order is governed by section 12 which provides:
12—Duration of extended supervision order
(1) An extended supervision order—
(a) takes effect—
(i) on the making of the order; or
(ii) on the relevant expiry date for the person subject to the order,
whichever is the later; and
(b)remains in force for a period of 5 years or such lesser period as is determined by the Supreme Court and specified in the order.
(2)The obligations of a person subject to an extended supervision order are suspended during any period the person is in government custody.
(3)Nothing in this section prevents the Court, on application by the Attorney‑General, from making a second or subsequent extended supervision order against a person.
The duration of an order should, to the extent possible, enable the conditions to operate in a manner that reduces the risk posed. That is particularly relevant where courses or programs designed to reduce risk have been identified. Another factor affecting the duration of an order is the legislative machinery. Mr Fitzpatrick can, with permission, apply to the Court to vary or revoke an order pursuant to s 13(1). It must be in the interests of justice to do so and there must have been a material change in his circumstances or to the order for a variation or revocation to be granted. The Parole Board can add conditions during the life of the order. The Attorney-General may apply to the Court for a further order within 12 months of the expiry of an existing order.[2] These mechanisms should operate to maximise the effectiveness of an order and prevent unnecessary conditions enduring longer than they have utility.
[2] See the definition of “relevant expiry date” in section 4(1) and sections 7(2) and 12(3) of the Act.
The risk posed by Mr Fitzpatrick is unusual in that it is said to be likely to increase after several years. I accept Mr Lutt’s submission, however, that this does not mean that a five year order is necessarily appropriate. However, Mr Fitzpatrick must accept that it means that it is possible that the Attorney-General will apply for a further order, or that the Parole Board will seek to impose stricter conditions, after the passage of some time. Mr Lutt submitted that, taking into account the period already spent on the interim supervision order, the appropriate order is one that would take the total period of supervision to 12 months. That would mean a further order of approximately six or seven months. I consider that to be inadequate to enable the Department, the Parole Board and the Attorney-General to manage and monitor the risk. In the context of the medical opinion about how Mr Fitzpatrick’s risk is likely to change, it will be important for that monitoring to be carried out in such a way that might lead to the current predictions about the increasing risk posed by Mr Fitzpatrick being modified by his response to counselling or any other event in the life of the order. The Attorney-General submitted that a period of three years is appropriate. Whilst the matter is incapable of scientific determination, I consider that this duration is not required and I would impose a period of two years, six months for the order to operate.
Order
Mr Fitzpatrick will be subject to an extended supervision order for 2 years, six months. The conditions of that order are that as set out in clauses 2.1 – 2.6 inclusive, 2.8 – 2.16 inclusive, and 2.18 – 2.24 inclusive (to be re-numbered accordingly in the extended supervision order) of the interim supervision order as described in paragraph 11 of this decision.
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