Attorney-General v Fardon

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SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Fardon [2011] QCA 155

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(appellant)
v
ROBERT JOHN FARDON
(respondent)

FILE NOS:

Appeal No 4240 of 2011
SC No 5346 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2011

JUDGES:

Chief Justice, Fraser JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. That the appeal be allowed;
2. That the order made 20 May 2011 be set aside; and

3. Under s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, that the supervision order made on 19 October 2007 be rescinded and the respondent be detained in custody for an indefinite term for care, control or treatment.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where appellant seeks rescission of the supervision order and order that the respondent be detained in custody for an indefinite term – where respondent is 62 years old with serious criminal history – where respondent had contravened existing supervision order by visiting licensed premises and going unsupervised to the residence of an intellectually disabled person – where there was uncontested evidence that the respondent was likely to contravene the supervision order – where primary judge found that the contraventions had occurred, and had ordered that the respondent be released from custody subject to an amended supervision order – whether it was reasonably open to the primary judge to conclude that the community would be adequately protected with an appropriately amended supervision order – whether the primary judge gave adequate reasons for her conclusion – whether the failure of the respondent to give evidence was significant

Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld), s 13(5)(a), s 17(1), s 22(2), s 22(7)

Attorney-General v Fardon [2003] QSC 379, cited
Attorney-General for the State of Queensland v Fardon [2006] QSC 275, cited
Attorney-General for the State of Queensland v Fardon [2006] QSC 336, cited
A-G (Qld) v Fardon[2006] QCA 512, cited
A-G (Qld) v Fardon [2007] QSC 299, cited
A-G for the State of Qld v Fardon [2011] QSC 18, cited
Attorney-General for the State of Queensland v Fardon (No 2) [2011] QSC 128, overruled
Attorney-General for the State of Queensland v Fardon[2011] QCA 111, considered
Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited
R v Fardon[2010] QCA 317, cited

COUNSEL:

P J Davis SC, with A D Scott, for the appellant
D P O'Gorman SC, with M G Nolan, for the respondent

SOLICITORS:

Crown Law for the appellant
Patrick Murphy Solicitor for the respondent

CHIEF JUSTICE:

Introduction

  1. The Attorney-General appeals against an order made in the Trial Division on…

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Details
Case
[2011] QCA 155
Decision Date

CaseChat Overview and Summary

The case of Attorney-General v Fardon involved the appellant, the Attorney-General, seeking the rescission of a supervision order placed on the respondent, Fardon, and his indefinite detention. The respondent, aged 62, had a serious criminal history and had previously contravened an existing supervision order by visiting a licensed premises and visiting the residence of an intellectually disabled person without supervision. The primary judge found that these contraventions had occurred and ordered the respondent's release from custody subject to an amended supervision order. The Attorney-General appealed, arguing that it was not reasonably open to the primary judge to conclude that the community would be adequately protected with an amended supervision order and that the primary judge failed to give adequate reasons for her conclusion.

The court had to decide whether it was reasonably open to the primary judge to conclude that the community would be adequately protected with an amended supervision order, whether the primary judge gave adequate reasons for her conclusion, and whether the failure of the respondent to give evidence was significant. The court found that it was not reasonably open to the primary judge to conclude that the community would be adequately protected with an amended supervision order, as there was uncontested evidence that the respondent was likely to contravene the supervision order. The court also found that the primary judge failed to give adequate reasons for her conclusion, as she did not consider the respondent's failure to give evidence and did not adequately address the risk he posed to the community. The court found that the failure of the respondent to give evidence was significant, as it meant that the primary judge did not have all the relevant information before her when making her decision.

The court allowed the appeal and set aside the order made on 20 May 2011. The court rescinded the supervision order made on 19 October 2007 and ordered that the respondent be detained in custody for an indefinite term for care, control or treatment under section 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003. This decision highlights the importance of considering all relevant information when making decisions about the detention of dangerous offenders and the need for adequate reasons to be given for such decisions.

Orders

Orders of the court

1. That the appeal be allowed;

2. That the order made 20 May 2011 be set aside; and

3. Under s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, that the supervision order made on 19 October 2007 be rescinded and the respondent be detained in custody for an indefinite term for care, control or treatment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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