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 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.
In the Board’s report dated 16 July 2015, the Presiding Member, Ms Frances Nelson QC detailed 15 proposed conditions that might be imposed if Mr F were released on licence. Ms Nelson reported that in the Board’s assessment Mr F was at very high risk of reoffending and therefore any conditions should be strict.
Ms Nelson reported in the Board’s report of 15 September 2015 that a proposed place of residence for Mr F had been deemed unsuitable. Attached to that report is a letter Mr F sent to the Board requesting that his conditions of release permit him to have a blood alcohol level of 0.05, be allowed on licenced premises, attend family functions and have contact with his son whilst an adult family member is present. Mr F stated that his wife, his daughters Mrs A and Mrs B and their husbands had all indicated they were prepared to “undertake the partners/family course at Owenia House”. Ms Nelson reported that the Board would not support a condition which would permit Mr F to drink alcohol. The Board further recommended that Mr F be prevented from contact with anyone under the age of 16 without a person nominated and approved by his CCO being present.
In the report dated 28 October 2015, Ms Nelson advised that the Board had received information from the Department for Correctional Services that there was a vacancy at an OARS hostel for Mr F commencing on 2 November 2015. The Board recommended that conditions 33 and 34 of the suggested conditions for the release on licence provided to the Court on 16 July 2015 be amended to include specific reference to Mr F’s son, C, in condition 33 and the suburb “Blakeview” in paragraph 34 as follows:
33 That you not contact, attempt to contact or associate in any way, whether directly or indirectly, with [name of Mr F’s wife] or [C] without the prior permission of the Parole Board.
34 That you not enter the suburbs of Burton, Blakeview, Paralowie, Elizabeth, or Salisbury without the permission of the Parole Board.
(Emphasis added)
A copy of the amended draft conditions for release on licence numbered 1 to 36 was attached to the Board’s report 28 October 2015.
The order for release on licence
On 29 October 2015, I ordered that Mr F be released on licence on 2 November 2015. At the time of making the order, counsel for Mr F confirmed that he had seen the Board’s report 28 October with the draft conditions attached.
On 2 November 2015, Mr F signed an order for release on licence prepared by the Board acknowledging that the conditions of his release had been explained to him and he fully understood them. Those conditions provided that he would be supervised by the Board and be subject to an intensive supervision regime supervised by the Department for Community Corrections’ Intensive Compliance Unit (ICU). That regime required that he be subject to electronic monitoring and to comply with the directions of the ICU officer under whose supervision he was placed.
The conditions also warned that “the PAROLE BOARD MAY CANCEL YOUR RELEASE if you breach any condition and direct that you be returned to prison”. The final clause of the order informed Mr F that if he faithfully observed all the terms and conditions of the order his licence would expire on 1 November 2018.
I note the copy of the order for release signed by Mr F on 2 November 2015 does not refer to his son in condition 33 or the suburb “Blakeview” in condition 34.[2] It is clear, however, that condition 24 prohibited Mr F from any contact with any person under 16 without his CCO present or a person nominated by his CCO.
[2] Copy attached to Board’s report dated 11 October 2016.
The cancellation of the release on licence
On 15 February 2016, Ms Nelson suspecting that Mr F had failed to comply with the urine testing and the non-contact with persons under 16 conditions of his release on licence caused a warrant to be issued for Mr F’s arrest pursuant to s 24(7)(b) of the CLSA. The warrant was executed on 16 February 2016 and Mr F was taken into custody.
Mr F was interviewed by the Board on 22 March 2016 and his release on licence was cancelled on 26 April 2016 pursuant to s 24(5) of the CLSA.
The second application for release on licence
The matter was next brought to the attention of the Court when, on 7 July 2016, Mr F made his second application to be released pursuant to s 24 of the CLSA. The application is supported by an affidavit of Mr F’s solicitor sworn 13 July 2016, an affidavit of Mr F’s daughter Mrs A sworn 24 June 2016 and an affidavit of Mr F’s daughter Mrs B sworn 7 July 2016.
On 25 July 2016, another Judge of this Court ordered that two psychiatric reports and a report from the Parole Board be provided to the Court pursuant to s 24(1c) of the CLSA. The Court received reports from Dr Begg dated 21 September 2016, Dr Nambiar dated 22 August 2016 and the Board dated 11 October 2016. The Board’s records concerning Mr F’s release on licence were subpoenaed by Mr F.
The matter was then referred back to me. On 12 December 2016, counsel for the Director of Public Prosecutions (“the Director”) and counsel for Mr F informed me that there was a discrepancy regarding matters that Dr Begg had reported on and matters contained in the Community Corrections Minutes to the Board and the Board records. There was also a dispute between matters deposed to in Mr F’s daughters’ affidavits and matters contained in the notes made by Mr F’s CCO, Mr Colin Mercer.
It was therefore necessary to conduct a disputed facts hearing to determine the factual matters in dispute in order that further reports could be sought from Forensic Mental Health Services. The listing of the hearing was delayed as the Director’s office had been contacted by Mr F’s now estranged wife. I was informed that despite many attempts the Director’s office was unable to obtain a statement from Mr F’s wife.
The supervision of Mr F as recorded by Community Corrections and the Board
The issues of concern recorded in Community Corrections notes and minutes to the Board and the Board’s records pertaining to Mr F’s supervision are:
·On the day after Mr F’s release, he attended for supervision and produced a mobile phone capable of internet access and taking photographs.
·Mr F was summonsed to attend a Board hearing on 10 November 2015. Mr F’s OARS worker explained to the Board that the phone had been purchased in haste close to Mr F’s curfew at an On The Run. Mr F informed the Board during the interview that he no longer had a phone with internet and photographic capabilities. The Board found the alleged breach was not proved and warned Mr F “to strictly adhere to his licence conditions and the consequences of not doing so”.
·Following supervision on 17 November 2015, Mr F was reported to the Board for failing to provide a urine sample and questioning the need to be tested. In the minute to the Board the CCO Anna Portlock reported concerns about Mr F challenging his conditions of release. Ms Portlock stated that a week after the Board hearing on 10 November 2015, Mr F requested permission to have contact with his son. It is reported in the minute that Mr F denied his offending during supervision and lacked insight into his level of risk.
·A minute to the Board dated 27 November 2015 raised a concern that Mr F had invited an Anglican priest to his OARS accommodation on 24 November 2015 without prior permission contrary to rules of his OARS hostel tenancy. Mr Mercer reported to the Board that he had warned Mr F he was putting the OARs tenancy at risk by not complying with the hostel rules.
·Three days later on 27 November 2015 Mr Mercer received a phone call from an OARS worker who managed Mr F’s tenancy at the hostel. The worker reported that Mr F had initiated conversation with a neighbour living next to the OARS hostel in contravention of the OARS hostel rules. Concern was raised because the neighbour housed disabled children at the property.
·By letter dated 14 December 2015, Mr F requested permission from the Board to attend a pre-Christmas family lunch. The letter referred to the names and ages of children who would be present at the lunch including his daughter, Mrs A’s, eight year old daughter. Mr Mercer contacted Mrs A on 14 December regarding her daughter having contact with Mr F. Mr Mercer recorded that Mrs A informed him that she believed her father had been “set up” in relation to his sexual offending and that she had no problems with him having unsupervised contact with her daughter.
·On 14 December 2015, Mr Mercer spoke to Mr F regarding the conversation he had with Mrs A. Mr Mercer has recorded in his notes and in his minute to the Board dated 14 December that Mr F accepts he was convicted but only because the Court had decided to do so and that he had doubts due to DNA evidence not matching his DNA. Mr Mercer also recorded that Mr F had acknowledged that he had informed his daughter that he had been set up.
·Mr Mercer recorded in a minute to the Board dated 17 December 2015 that on 14 December 2015 during a telephone call Mr F disclosed that he had his wife’s number in his telephone contact list despite it being a condition of his licence that he have no contact with his wife. Mr Mercer reported that Mr F hung up twice during this discussion, that he continued to display a victim mentality and believed he was being unjustly treated.
·On 23 December 2015, Mr F failed to provide a urine sample and was reported by Mr Mercer as appearing to show no intention to provide a sample. He was given a second opportunity and is reported as having said, “it will have to be a refusal then”. Mr Mercer reported to the Board in his minute dated 23 December that while he was not concerned about drug and alcohol use he was concerned about Mr F’s non-compliant attitude. By correspondence dated 29 December the Board informed Mr F that it had noted Mr Mercer’s report of an alleged breach of the urine testing condition and had resolved to issue a summons for interview on 29 March 2016.
·In a minute to the Board dated 5 January 2016 Mr Mercer recorded that on 31 December Mr F agreed to his request to check his telephone contact list. Mr Mercer found the contact number for an ANCOR registered offender. He also found the number for “an offender subject to Bail Home Detention”, who was resident at the same OARS hostel as Mr F and who “has pending sexual offending Court matters”. Mr Mercer again expressed his concern that Mr F continued to display a disregard for rules and boundaries.
·On 6 January 2016 the Board wrote to Mr F reiterating that he had agreed to comply with his licence conditions which included urine testing. He was warned that any further non-compliance would be reported for consideration of whether he should remain on licence or be returned to custody.
·Mr F failed to provide a urine sample within the time permitted on 11 January 2016. He provided to Mr Mercer a letter addressed to the Board dated 11 January 2016 asking the Board to relax his weekly urine testing stating he was not at fault for not producing urine samples. He stated in the letter that he had never taken any illegal substance and his last consumption of alcohol was in 2007. He referred to having had renal failure in 1996 and that it was “difficult for me to pee on demand sometimes I only urinate only once a day no matter how much fluid is consumed”.
·In a minute to the Board dated 8 January 2016 Mr Mercer reported that Mr F continued to display cognitive distortions in relation to his offending behaviour, that he failed to take responsibility and continued to blame his victims as to why he offended.
·In a minute to the Board dated 10 February 2016 Mr Mercer reported that he had been contacted by Mr F’s wife who had expressed concern regarding how Mr F had manipulated his daughter Mrs B to ask his 15 year old son to write a letter to the Board requesting permission to meet him. Mrs F reported that her son did not want contact with his father.
·On 11 February 2016 Mr Mercer reported to the Board that Mrs F had again contacted him and informed him that at 19.29pm on 11 February her son had received a text message from Mr F saying “Dr Who ABC at 7.30”. Mrs F also informed Mr Mercer that Mr F had asked Mrs A to order the banned film Ken Park online.[3]
Mr Mercer reported that, during supervision on 11 February, Mr F admitted to sending the text to his son saying it was a stupid mistake. When Mr Mercer questioned Mr F about the film Ken Park, Mr F said he had asked Mrs A to order it for him but she refused. Mr F is reported to have said to Mr Mercer that he had purchased the film before and that he had become aroused watching an 18 year old actor who looks younger than 18 masturbating in the film. Mr Mercer reported to the Board that he had serious concerns regarding Mr F’s risk of reoffending, that he continues to blatantly violate boundaries and that he appears to be looking to fuel his deviant fantasies by wanting to purchase the Ken Park film. Mr Mercer’s report to the Board also detailed that Mr F had undergone 16 urine tests since his release, five are recorded as refusals, 10 as negative and one as “no result to date”.
·In response to Mr Mercer’s 11 February 2016 minute, the Board resolved on 15 February to withdraw the summons for Mr F to attend a meeting on 29 March and issue a warrant.
·On 15 February 2016, a warrant was issued for Mr F’s arrest. The warrant was executed on 16 February 2016 and Mr F was taken into custody.
·Mr F wrote to the Board on 17 February 2016 explaining that he texted his son as he knew he was a Dr Who fan and that he realised it was the wrong thing to do.
·The Board interviewed Mr F on 22 March 2016. The Board resolved following the interview that there had been a proved breach of the no contact under 16 years condition, the urine testing condition and the good behaviour condition. The Board deferred its decision pending receipt of further advice.
·On 26 April 2016 the Board in consultation with the Director of Public Prosecutions ordered the cancellation of Mr F’s release on licence.
[3] Ken Park was refused classification by the Australian Classification Board as it contained “actual sexual activity involving characters that are portrayed as minors that could not be accommodated within the R18+ classification”. Classification Review Board, ‘Classification Review Board determines Ken Park refused classification’, Media Release, 6 June 2003.
The disputed facts hearing

Mrs A was called to give evidence at the disputed facts hearing on the matters deposed to in her affidavit. Mr F’s counsel attempted to call Mrs B but despite concerted efforts I was told her attendance could not be arranged and accordingly her affidavit was not relied on.
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.
Mrs A’s evidence revealed a family wrought by conflict and dysfunction. Despite saying she understands the seriousness of her father’s sexual offending, I suspect she either denies or minimises her father’s conduct and that she does hold the view that he was “set up”. Her vindictiveness towards her mother and her older half-sister, the inconsistency between matters deposed to in her affidavit and her evidence regarding the DVDs, and her admission that she would do anything for her father (except order the Ken Park film) are such that her evidence cannot be relied on. I do not accept any of Mrs A’s evidence regarding her conversations with Mr Mercer.
Mr Mercer’s evidence
Mr Mercer gave his evidence by reference to his detailed case notes and the minutes to the Board. I find Mr Mercer was a credible and reliable witness. He is a highly experienced CCO who was tasked by the Board to supervise Mr F’s intensive supervision regime. I accept his evidence regarding his supervision of Mr F without reservation. I accept his account of his discussion with Mr F regarding the Ken Park film. I also accept his account of his discussions with Mrs A wherein she said her father had been set up and that she had no concerns with her father having contact with her daughter.
Ms Nelson QC’s evidence
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.