Attorney-General (SA) v Fitzpatrick - [2019] SASC 143

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 143
HUGHES 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General (SA) v Fitzpatrick

Details

AGLC: Attorney-General (SA) v Fitzpatrick [2019] SASC 143
Case: [2019] SASC 143
Decision Date: 14 August 2019

CaseChat Overview and Summary

In Attorney-General (SA) v Fitzpatrick, the South Australian Supreme Court was tasked with determining the appropriate duration and conditions of an extended supervision order (ESO) for Mr. Fitzpatrick, who had previously pleaded guilty to indecent assault and digital rape of a minor and had been on the ANCOR register. The Attorney-General proposed a five-year ESO, while Mr. Fitzpatrick contested the conditions and duration, arguing for a shorter period. The primary legal issue the court needed to decide was the appropriate duration and conditions for the ESO, considering the safety of the community and the risk posed by Mr. Fitzpatrick.

The court considered expert medical evidence that highlighted Mr. Fitzpatrick's external locus of control and poor emotional regulation, which increased his risk of reoffending over time. The evidence suggested that while Mr. Fitzpatrick's risk of reoffending was low in the short term, it could escalate in the medium to long term if he did not engage fully in psychological therapy and maintain lifestyle changes. The court acknowledged the importance of the ESO conditions in managing and mitigating the risk posed by Mr. Fitzpatrick and recognised the legislative mechanisms for varying or revoking the order. The court ultimately decided that a two-and-a-half-year ESO was appropriate, allowing for sufficient monitoring and management of the risk while considering the possibility of future applications for additional orders.

The court concluded that the two-and-a-half-year ESO with specific conditions would adequately address the safety of the community while allowing for adjustments based on Mr. Fitzpatrick's response to treatment and any changes in his circumstances. The court imposed an ESO for two years and six months, with most but not all of the conditions currently in place under the interim supervision order. The final orders reflect the court's determination to balance the need for public safety with the individual circumstances of Mr. Fitzpatrick, ensuring that the order is effective in mitigating the risk of reoffending.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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