R v F, JM (No 2) - [2017] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v F, JM (No 2)
[2017] SASC 94
Reasons for Decision of The Honourable Justice Bampton
26 June 2017
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
Application by Mr F for release on licence pursuant to pursuant to s 24 Criminal Law (Sentencing) Act 1988 (SA). A dispute arose as to what Mr F reported to the psychiatrists regarding his compliance with conditions of his previous release on licence and matters recorded by his Community Corrections Officers. Accordingly, a disputed facts hearing was held.
Held:
1. The facts of Mr F’s supervision following his release on licence on 2 November 2015 are as recorded in the notes and minutes to the Parole Board prepared by the Community Corrections Officers supervising Mr F and the Parole Board records.
Criminal Law (Sentencing) Act 1988 (SA) s 23, s 24; Criminal Law Consolidation Act 1935 (SA) s 48, referred to.

R v F, JM (No 2)
[2017] SASC 94
Criminal: Disputed Facts Hearing

BAMPTON J: Mr F is subject to an order for indefinite detention pursuant to s 23(4) of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”). He was released on licence pursuant to s 24 of the CLSA on 2 November 2015. That release was cancelled by the Parole Board (“the Board”) on 26 April 2016.
Mr F now makes his second application for release on licence pursuant to s 24 of the CLSA.
There is a dispute regarding what Mr F had reported to the psychiatrists regarding his compliance with the conditions of his release on licence and matters recorded by the Community Corrections Officers (“CCOs”) supervising him. Further, two of Mr F’s daughters have deposed to accounts of conversations which differ to the accounts recorded by Community Corrections. I therefore heard a disputed facts hearing on 1 June 2017 in order to make findings regarding the matters in dispute.
Background
The order for indefinite detention
On 10 April 2015, I ordered that Mr F be detained in custody until further order pursuant to s 23(4) of the CLSA (“the Order”).
At time of the Order, Mr F was serving a sentence of eight years’ imprisonment with a non-parole period of four years and six months following his convictions for seven counts of unlawful sexual intercourse with a person under the age of 17 years contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). As Mr F had not been granted parole, his sentence was served in custody.
Pursuant to s 23(7) of the CLSA, the indefinite detention commenced on the expiration of Mr F’s imprisonment on 18 April 2015.
In R v F, JM,[1] I set out my reasons for making the Order. I also explained that in making the Order I had borne in mind the need to protect the community, the need to ensure that Mr F receives appropriate…

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.

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Details

Case: [2017] SASC 94
Decision Date: 26 June 2017

CaseChat Overview and Summary

The case of R v F, JM (No 2) involved the defendant, Mr F, who was under a sentence of indefinite detention following convictions for unlawful sexual intercourse with a person under the age of 17 years. Mr F had applied for release on licence, which was denied due to concerns about his ability to comply with the conditions of his release, particularly regarding contact with his minor son. The case involved disputes over the information Mr F had provided to psychiatrists and the differing accounts of his interactions with his daughters and the Community Corrections Officers (CCOs). A disputed facts hearing was held to clarify these issues.

The primary legal issues before the court were whether Mr F had complied with the conditions of his release on licence and whether he had reported accurately to the psychiatrists about his compliance and interactions with his family. The court also needed to determine the credibility of the evidence provided by Mr F's daughters and the CCOs. The court had to weigh these factors against the paramount consideration of community safety when deciding on Mr F's eligibility for release on licence.

The court found that Mr F had not complied with the conditions of his release and had misrepresented his interactions with his family to the psychiatrists. The court accepted the evidence of the CCOs and Ms Nelson QC over that of Mr F's daughters, who were found to be biased and unreliable. The court concluded that the cumulative evidence of Mr F's non-compliance with the conditions of his release on licence, along with his misrepresentations to the psychiatrists, justified the cancellation of his release. The court also determined that the facts of Mr F's supervision, as recorded by the CCOs and the Board, were accurate and would be considered by the practitioners nominated by the Director of Forensic Mental Health when assessing Mr F's mental condition and his capacity to control his sexual instincts.

The court upheld the decision to deny Mr F's application for release on licence and ordered that he remain under indefinite detention. This decision was based on the findings that Mr F had not complied with the conditions of his release and had misrepresented his interactions with his family, thereby posing a continued risk to the community.

Orders

Orders of the court

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Background

Background to the litigation

There is a dispute regarding what Mr F had reported to the psychiatrists regarding his compliance with the conditions of his release on licence and matters recorded by the Community Corrections Officers (“CCOs”) supervising him. Further, two of Mr F’s daughters have deposed to accounts of conversations which differ to the accounts recorded by Community Corrections. I therefore heard a disputed facts hearing on 1 June 2017 in order to make findings regarding the matters in dispute.BackgroundThe order for indefinite detention On 10 April 2015, I ordered that Mr F be detained in custody until further order pursuant to s 23(4) of the CLSA (“the Order”). At time of the Order, Mr F was serving a sentence of eight years’ imprisonment with a non-parole period of four years and six months following his convictions for seven counts of unlawful sexual intercourse with a person under the age of 17 years contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). As Mr F had not been granted parole, his sentence was served in custody. Pursuant to s 23(7) of the CLSA, the indefinite detention commenced on the expiration of Mr F’s imprisonment on 18 April 2015. In R v F, JM,[1] I set out my reasons for making the Order. I also explained that in making the Order I had borne in mind the need to protect the community, the need to ensure that Mr F receives appropriate treatment, review and supervision, and the deprivation of liberty brought about by an order for indefinite detention.[1] [2015] SASC 99.The application for release on licence Upon the making of the Order, Mr F made application for release on licence pursuant to s 24 of the CLSA. Section 24(1b) mandates that when determining an application for the release on licence of a person detained in custody the safety of the community is of paramount consideration. Pursuant to s 24(1c) I was also obliged to consider the following matters in determining the application:·the reports of Dr Brereton and Dr Begg supplemented by the evidence they gave on 18 June 2015 as referred to in R v F, JM;·submissions made on behalf of Mr F; and ·the reports furnished by the Board. It was apparent when I made the Order that both Mr F and his family either minimised or denied his offending. Dr Brereton’s evidence was that if Mr F were returned to his family unit there would be a significant risk that if the opportunity were to present itself he would not exercise self-control. Dr Brereton said it was a concern that Mr F’s son (then aged 14) was living in the family home. It was also of particular concern that Mr F’s wife appeared not to have been able to regulate his behaviour previously and had implicitly condoned it. Dr Brereton agreed with the authors of an individual treatment report that if Mr F were released on licence he should not live with his teenage son and that any contact with his son be supervised. Dr Brereton also agreed that ideally the place for Mr F was back with his family unit, but that family unit needed to be a positive environment. To this end Dr Brereton said it would be of benefit if Mr F’s wife was able to obtain assistance from Owenia House. If Owenia House assistance was sought, an assessment of the family’s attitudes could be undertaken and if that assessment revealed that the family would be a positive support, then it might be preferable for Mr F to live with his family. However, Dr Brereton considered at the time he gave his evidence in mid-2015 that situation was a long way off.

Evidence

Evidence Before The Court

The Director called Mr Mercer and Ms Nelson QC.Mrs A’s evidence Mrs A denied telling Mr Mercer that her father had been set up. She also denied telling Mr Mercer that she had no problems with her daughter being left alone with her father. She maintained that she told Mr Mercer that she did not have any problems with her daughter being with her father because there would always be another adult in the room at the proposed pre-Christmas lunch. In cross-examination, Mrs A said she loves her father and would do anything for him except order the Ken Park film. Mrs A spoke with unrestrained disdain for her mother. She admitted to not liking and having no time for her mother. Mrs A asserted that her mother had not been supporting her father “since he went in”. She blames her mother for the Board’s condition that her father cannot see her brother. She spoke with animosity about how her mother, brother and sister “break in” to her father’s bedroom. She accused her mother of being in the habit of stealing DVDs and CDs and cashing them in for money at Cash Converters. Mrs A said she was angry with her mother going to work all the time when, in her words, “as far as I was concerned it was her choice because she was still collecting Centrelink payments as well”.[4][4] T47. Mrs A was asked whether, given her father had sexually offended against a 16 year old boy, it was not unreasonable that her mother would ask for a condition that her father not have contact with his 16 year old son. Her response was:[5]A.I find it very unreasonable seeing at the end of the day [C’s] my dad’s son, like there’s always going to be an adult because there’s another adult, either one of my sisters living at home, so there’s always supervision.[5] T39/23-26. Mrs A deposed in her affidavit to having attended at her mother’s house while her father was in custody and conducting an audit of her father’s DVDs with the intention of taking the DVDs to her home. Exhibited to Mrs A’s affidavit is a list of DVD titles written by Mr F. Mrs A deposed to her father telling her he wanted to find out whether any of his DVD collection had gone missing and would need replacing. Mrs A deposed in her affidavit that as she did not have a car at the time of the audit she had no means of transporting the DVDs. However, in response to my questioning, she said she could not take the DVDs not because she did not have a car but because her car boot was too small. When I asked why she could not take some of them she said could have but she was not allowed by her mother to take any of them. Mrs A denied that Mr F had asked her to order the film Ken Park online. She maintained that while Ken Park is listed on the list of DVDs exhibited to her affidavit at no stage did Mr F discuss the film Ken Park with her. Mrs A deposed that, during the first two months of 2016 whilst driving her brother C to school, Mr F wanted to know whether C wanted to have contact with him. C told her he did not want to have contact “at that precise moment as he was going into year 10” and was focusing on playing football. She suggested C write to the Board to explain this to Mr F. Mrs A said that C asked for her help to write the letter but they did not ever get around to writing it.

Decision

Reasons for decision

I accept without reservation Ms Nelson QC’s evidence with respect to the Board’s supervision of Mr F.Conclusion Mr Mercer was the person who was best able to make an assessment regarding the risk Mr F posed and what matters needed to be reported to the Board. Having regard to Mr Mercer’s evidence and that of Ms Nelson QC, it was the individual matters detailed in para [24] above that raised alarm about Mr F’s ability to comply with the intensive supervision regime, which cumulatively led to the cancellation of his release. I find the facts of Mr F’s supervision following his release on licence on 2 November 2015 are as recorded in the notes and minutes to the Board prepared by the CCOs supervising Mr F and the Board’s records. Those facts are set out in para [24] above. These are the facts the Court will ask the practitioners nominated by Director of Forensic Mental Health to have regard to when inquiring into the mental condition of Mr F and reporting to the Court pursuant to s 24(1a) on whether he is incapable of controlling or unwilling to control his sexual instincts.

Ratio Decidendi

Legal Principle Established

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