Secretary to the Department of Justice v Fletcher

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 1527 of 1997

SECRETARY TO THE DEPARTMENT OF JUSTICE	Applicant
v
ROBIN ANGUS FLETCHER	Respondent

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JUDGE:	CUMMINS J (until 28 October 2009), BONGIORNO JA (from 17 December 2009)
WHERE HELD:	MELBOURNE
DATES OF HEARING:	12, 19-22, 27-28 October 2009 (Cummins J); 17 December 2009, 13-14 January, 21 April 2010 (Bongiorno JA)
DATE OF JUDGMENT:	30 April 2010
CASE MAY BE CITED AS:	The Secretary DOJ v Fletcher
MEDIUM NEUTRAL CITATION:	[2010] VSC 170

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CRIMINAL LAW – Extended Supervision Order (ESO) – Review of ESO – Application by offender by leave – Whether Court satisfied to a high degree of probability that the offender is likely to commit a relevant offence – ESO not revoked – s 23(1) Serious Sex Offenders Monitoring Act 2005.

STATUTORY INTERPRETATION – Application filed and part-heard before repeal of Serious Sex Offenders Monitoring Act 2005 (old Act) and commencement of Serious Sex Offenders (Detention and Supervision) Act 2009 (new Act) – Which Act applied – Accrued rights to review – Transitional provisions of new Act – Review under old Act – Function of Court – s 23(1) Serious Sex Offenders Monitoring Act 2005; Schedule 2, Serious Sex Offenders (Detention and Supervision) Act 2009; s 14(2) Interpretation of Legislation Act 1984.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC with Ms K Stern	Victorian Government Solicitor’s Office
For the Respondent	Mr G Thomas SC with Mr A Marshall	Cinque Oakley

BONGIORNO JA:

In 1998 Robin Angus Fletcher pleaded guilty in this Court to three counts of wilfully committing an indecent act with a child under the age of 16, one count of sexual penetration of a person between 10 and 16, one count of child prostitution and one count of attempting to pervert the course of justice. On 4 March 1998, he was sentenced by Harper J to a total effective sentence of 10 years” imprisonment. His non-parole period was eight years.

Mr Fletcher became eligible for parole and was granted parole by the Adult Parole Board (“APB”). However, that parole was revoked peremptorily following the discovery by prison officials of a number of letters written by Mr Fletcher to residents of the African state of Ghana. The material contained in those letters was apparently considered by the APB such as to justify its revocation of the parole order which it had then recently made. In fact he was never released from custody.

Following the revocation of his parole, Mr Fletcher remained in prison with a release date of 12 June 2006, the end of his total effective sentence. By reason of the offences of which he had been convicted, Mr Fletcher was a candidate for an Extended Supervision Order (“ESO”) pursuant to s 5 of the Serious Sex Offenders Monitoring Act 2005, legislation designed to enhance the protection of the community by requiring certain sexual offenders to be subject to ongoing supervision, notwithstanding the completion of their prison sentences.[1] An ESO could be made if the Court which sentenced the offender to a term of imprisonment was satisfied, to a high degree of probability, that he was likely to commit a “relevant offence” if he was released into the community unsupervised. A relevant offence was an offence listed in a Schedule to the old Act. The Act conferred on the Secretary to the Department of Justice (“the Secretary”) the standing to make application for such an order.
[1]That Act will be referred to in this judgment as the “old Act” to distinguish it from the Serious Sex Offenders (Supervision and Detention) Act 2009 – “the new Act.”

On 29 May 2006, Gillard J made an ESO with respect to Mr Fletcher, to take effect from the end of his sentence, 12 June 2006.[2] The order was made with Mr Fletcher’s consent, although, as the Act required, his Honour was satisfied to the statutory standard that he was likely to commit a relevant offence if released into the community without being made the subject of such an order. The order made by Gillard J was subject to a number of conditions required by the statute and, with Mr Fletchers consent, specified that the order would remain in force for five years, until 12 June 2011. It is clear from his Honour’s published ruling that he thought that Mr Fletcher would be monitored pursuant to the Act “in the community” as the legislation appeared to contemplate.[3]
[2]Secretary, Department of Justice v Fletcher [2006] VSC 212.
[3]Section 1(1) of the old Act.

In fact, Mr Fletcher was not released into the community at all. As well as being subject to the conditions imposed by Gillard J’s order he was also made subject to a number of instructions and directions imposed by the APB pursuant to s 16 of the old Act. One of those instructions or directions was that he had to reside in a unit within the walls of the Ararat Prison known as the Extended Supervision Order Temporary Accommodation Unit. At the time Mr Fletcher was due for release from prison he was accommodated in a part of that unit called the Wimmera Unit – a part of Ararat Prison used to accommodate minimum security prisoners. After a number of other moves he was eventually accommodated in a three bedroom house called Residence One outside the perimeter of Ararat Prison. The residence was formerly that of the Prison Governor.

There was no contest in this proceeding as to the facts concerning Mr Fletcher’s current living conditions. The way in which he lived and is currently living is largely dictated by the instructions and directions given to him by the APB. As well as requiring him to live in his present accommodation those instructions impose significant restrictions on his freedom of movement, freedom of association and his freedom of access to information, particularly with respect to the internet. He is not permitted to visit public parks without written permission. He is subject to a curfew and is electronically monitored to ensure his compliance with it. He must not be within 500 metres of a school when children are likely to be around nor must he have any connection with any organisation which has anything to do with children. Because he must not leave his accommodation unescorted, his freedom of movement is subject to the availability of appropriate escorts provided by his custodians. This means that, for practical purposes, his capacity to move outside his residence, particularly beyond Ararat, is extremely limited – perhaps to eight or ten outings a month. To borrow the phrase used by Callaway JA in TSL v Secretary to the Department of Justice[4]: “he is a prisoner in all but name.”
[4][2006] VSCA 199, [10].

Shortly after the ESO commenced the APB exercised its powers under s 16 of the old Act to give instructions and directions to Mr Fletcher and he challenged the legality of some of those instructions and directions in this Court. On the hearing of that challenge Gillard J made a declaration that the APB could not impose a requirement on Mr Fletcher that he live inside Ararat Prison, where he was then living, as to do so was beyond its powers.[5] However, any apparent benefit Mr Fletcher received as a result of that declaration was more illusory than real having regard to the living arrangements subsequently imposed upon him.
[5]Fletcher v Secretary to the Department of Justice [2006] VSC 354, [61]-][71].

Section 21(3) of the old Act provided that a person subject to an ESO could, with the leave of the Court which granted the ESO, apply to it, at any time for a review of his ESO. By an application filed 11 December 2007 Mr Fletcher sought the leave of this Court to apply for such a review. That leave application was heard by Harper J who, on 23 June 2008, granted Mr Fletcher leave to apply to the Court for a review of the ESO.[6] His Honour granted leave largely because Mr Fletcher’s consent to the ESO had been given in the mistaken belief that pursuant to it he would be supervised in the community, without having his liberty curtailed in the manner and to the extent it eventually was.
[6]Secretary, Department of Justice v Fletcher (No 3) [2008] VSC 217.

Pursuant to the leave granted by Harper J, on 24 June 2008 Mr Fletcher instituted an application for a review of his ESO “… for the purpose of determining whether I should remain subject to the ESO made in respect of me”. Clearly, this was an application which fell to be determined pursuant to and in accordance with s 23 of the old Act.

Section 23 of the old Act required the Court, on a review of an ESO, to revoke the ESO unless it was satisfied, to a high degree of probability, that the offender was likely to commit a relevant offence if in the community and not subject to the ESO. The section imposed the burden of proof of establishing the conditions necessary to maintain the ESO on the Secretary. It also directed the Court as to the way in which it must approach certain aspects of the decision making process involved in reviewing an ESO.

Mr Fletcher’s application for review of his ESO came on before Cummins J on 12 October 2009. On that day his Honour gave directions for the hearing which he scheduled for 19 October. It commenced on that day and finished on 28 October when his Honour reserved his decision and fixed the date for judgment as 4 November 2009. In the course of the hearing a number of witnesses were examined and cross-examined. Unfortunately, shortly after he reserved his decision Cummins J took ill, as a result of which he was unable to determine Mr Fletcher’s application before he retired as a judge of this Court on 8 November 2009 upon his attaining the age of 70.

During the review proceeding Cummins J published three procedural rulings. The first two concerned applications for suppression of Mr Fletcher’s identity and the identities of certain witnesses. The third ruling was to the effect that the Charter of Rights and Responsibilities (“the Charter”) had no application to the review proceeding because it was not a new proceeding but merely a step in the original proceeding by which the Secretary had sought the ESO in 2006. That proceeding was commenced by an application filed on 2 March 2006. His Honour ruled that s 49(2) of the Charter itself precluded the application of the Charter to the review proceeding because it was merely a part of a proceeding which had been commenced before Part 2 of the Charter became operative.[7]
[7]Secretary to the Department of Justice v Fletcher (Ruling No 3) [2009] VSC 503.

Upon Cummins J’s retirement, I took over the uncompleted review of Mr Fletcher’s ESO, sitting as a judge of the Trial Division of the Court and pursuant to s 87(2) of the Constitution Act 1975. At a directions hearing held on 17 December 2009, the parties agreed that the review would be decided by my considering the transcript of the evidence taken before Cummins J, together with all other material tendered by the parties. Neither party sought to adduce further evidence. It was agreed that I would not hear any further evidence unless at any stage I considered it necessary to have any witness or witnesses recalled for further examination or cross-examination. In the event, I did not consider it necessary to pursue that course.

Notwithstanding Cummins J’s ruling as to the non-applicability of the Charter, at the directions hearing on 17 December 2009 Senior Counsel for Mr Fletcher was granted leave to reconsider his position with respect to the Charter and to inform the Court whether he intended to raise any Charter point on the subsequent hearing of the review in January 2010. In the event, counsel informed my Associate on 22 December that he did not intend to raise any matter concerned with the Charter. Accordingly, there has been no reconsideration by this Court of Cummins J’s ruling that the Charter has no application to this matter. Nor has there been any consideration of the Charter in any other context, including the possible effect of ss 49(1) and 32 on the construction of relevant legislation.

Old Act or New Act?

By the time of the directions hearing in December 2009 Parliament had passed an Act repealing the old Act and replacing it with the new Act. The date for the repeal of the old Act and the commencement of the new Act was 1 January 2010 – then only about 2 weeks away. As it was clear that the review could not be completed by that date it was necessary to consider the effect the repeal of the old Act would have on the review. However, initially, there seemed to be no need for the Court to rule on that question as there was agreement between the parties that the new Act would apply.

Section 15 of the old Act provided that an ESO had attached to it a set of statutory conditions. Those conditions, which were mandatory, were prescribed by s 15(3). Two of those conditions (ss 15(3)(g) and (h)) were that a person subject to an ESO must obey all lawful instructions and directions given by the APB pursuant to ss 16(1) and 16(2). These sections gave the APB wide discretionary powers of control over the activities of a person subject to an ESO.

One of the significant changes to the regime of supervision of eligible sex offenders effected by the new Act is that the Court now imposes conditions on a Supervision Order (“SO”). An SO is the equivalent under the new Act of an ESO, in which the conditions were statutory and were supplemented by instructions and directions given by the APB. The provisions in the new Act relating to the conditions which the Court may impose are of very wide compass.[8] Their determination would almost certainly require extensive evidence and argument. For these reasons, and for reasons of economy of legal and judicial resources the parties agreed that consideration of any condition to be applied to an SO in respect of Mr Fletcher would be deferred until it was determined whether he would henceforth be subject to an SO or have his current ESO revoked. Senior Counsel for both parties believed that if the Court determined that it should impose an SO on Mr Fletcher they would probably be able to negotiate suitable conditions within the statutory parameters fixed by the new Act which Mr Fletcher would accept and which the Secretary would regard as being appropriate. On that basis the matter was adjourned to 13 January 2010 for argument as to whether the ESO should be revoked or replaced by an SO.
[8]Sections 15-24 of the new Act.

When the matter returned to Court in January, Senior Counsel for Mr Fletcher sought to change his position with respect to the application of the new Act to this review. He wished to argue that on a proper construction of the transitional provisions in Schedule 2 to the new Act, the old Act continued to apply to Mr Fletcher. There being no objection to the raising of this issue at that stage and because the question of which Act applied was central to the proper determination of this review he was permitted to put that argument.

The new Act, whilst resembling the old Act in providing for ongoing supervision of certain sex offenders after their sentences of imprisonment have expired by the use of SOs, also provides for this Court to make orders (called Detention Orders) for the confinement in prison of certain sex offenders. The new Act also significantly alters the criteria upon which orders affecting serious sex offenders are made.

So far as relevant to Mr Fletcher’s circumstances the transitional provisions contained in Schedule 2 to the new Act specifically continue the operation of the old Act in relation to his ESO. Until that ESO is revoked, quashed or set aside or an SO is made under the new Act, the old Act applies to it. Schedule 2 further provides that Part 5 of the new Act applies to the review of an ESO as if it were an SO under the new Act. If the review results in the Court confirming the ESO it must make an SO under the new Act. By virtue of s 3(c) of Schedule 2 the making of that SO would render ineffective the ESO which it replaced.

Although it seems clear that after 1 January 2010 the review of ESOs is intended to be conducted under Part 5 of the new Act, difficulty is encountered when an attempt is made to apply the provisions of Part 5, which are primarily designed for use with SOs under the new Act, to an ESO under the old Act. The problem is at its most acute in s 73 of the new Act. Section 73(1) provides:
(1)Subject to subsection (3), on a review of a supervision order, the court must revoke the supervision order unless it is satisfied that the offender still poses an unacceptable risk of committing a relevant offence if a supervision order is not in effect and the offender is in the community. (Emphasis added)

Thus the criterion for continuing an ESO as an SO after a review is that the offender must still pose an unacceptable risk of committing a relevant offence. This criterion, expressed in this way, assumes a finding that the offender was found to have posed an unacceptable risk at some earlier time. The difficulty arises as, in the case of Mr Fletcher (and all others subject to an ESO) no such finding has ever been made. This Court, when it made the ESO which currently affects Mr Fletcher, found to a high degree of probability that he was likely to commit a relevant offence if released unsupervised into the community. It was never found that he posed an unacceptable risk of committing a relevant offence. It was found that he was likely to commit a relevant offence if he was released into the community unsupervised. The criterion in the operative provision of the old Act, s 11, and that in s 73 (and s 9) of the new Act might appear similar and might, in many cases, be able to be both satisfied in respect of any particular offender, but they are not the same. Read literally, s 73(1) could not be applied to Mr Fletcher.

Senior Counsel for Mr Fletcher put a number of arguments as to why the transitional provisions should be interpreted to preserve so much of the old Act as would permit it to be applied. If the old Act did apply, so his argument went, the Secretary would have to meet a higher standard of proof to maintain an ESO than she would have to meet to obtain an SO under the new Act. Section 23(1) of the old Act required the Court to revoke an ESO on a review unless satisfied to a high degree of probability that the offender was likely to commit a relevant offence if released into the community without being subject to an ESO. Under the new Act the factum probandum is different. The Secretary need only prove that the offender poses “an unacceptable risk of committing a relevant offence” if an SO is not made and the offender is in the community. The new Act does not require proof of the likelihood of offending. Also, under the new Act the Court is precluded from considering the means of managing the risk of re-offending or the likely impact of an SO on the offender. Overall, the scheme established by the new Act is considerably harsher than that under the old Act from the offender’s point of view. If the new Act now applies to the completion of this review, which undoubtedly commenced under the old Act, Mr Fletcher will be materially disadvantaged by the fortuitous event of his review not having been completed before the commencement of the new Act; a review which he instituted on 24 June 2008 pursuant to leave granted earlier.

A consideration of the whole of Schedule 2 to the new Act leads inevitably to a conclusion that it was the intention of Parliament to preserve the old Act as applying to existing ESOs, but only until an ESO was brought to Court for review – a process provided for by the old Act and continued by the new Act. It is also clear that it was intended that, upon an ESO being brought up for review, the review would be conducted in accordance with Part 5 of the new Act. Section 4(1) of Schedule 2 specifically so provides, and s 4(2) contemplates the possible outcome of such a review, namely the imposition of an SO. If that is the outcome of the review then s 3(c) of Schedule 2 causes the old Act to cease to apply to the offender. Thus, his ESO is no longer of any effect. It is no longer required as he is being supervised under the new regime.

There is undoubtedly difficulty in literally applying Part 5 of the new Act, and s 73(1) in particular, to a review of an ESO. But the Parliamentary intention that it should apply is clear enough. After the commencement of the new Act, ESOs will be replaced, where appropriate, by SOs. The scheme of the legislation is that an eligible offender who is not the subject of an ESO will be dealt with pursuant to s 9 of the new Act, whereas an offender who has been the subject of an ESO will be dealt with pursuant to s 73. These provisions are complementary. In each case the offender will be treated the same. The same criteria will be applied to both new and old offenders. They will be liable, as the case requires, to the same outcome.

As has already been noted, the words used in s 73(1) of the new Act are somewhat inapt to be literally applied to an existing ESO. To give meaning to s 73(1) in the context of a case involving an ESO under the old Act it would be necessary to read it as if the word ‘still” was deleted. But such a construction would appear to accord with Parliamentary intention, so that it might be compelled: Broken Hill South Limited v Commissioner of Taxation (NSW)[9]; Grey v Pearson[10]; Shire of Arapiles v Board of Land and Works[11].
[9](1937) 56 CLR 337, 371 (Dixon J).
[10](1857) 6 HLC 61, 106; 10 ER 1216, 1234 (Lord Wensleydale).
[11](1904) 1 CLR 679.

However the problems of applying the new Act to an existing ESO may be overcome, they do not arise unless the new Act applies to a case where a review has been commenced under the old Act after the offender has obtained leave from the court to seek such review pursuant to s 21(3). It is accordingly necessary to examine the transitional provisions of the new Act to determine whether they apply to this specific situation. Even if, as appears almost certain, they apply the new Act to a review of an ESO commenced after 1 January 2010, the situation with respect to an existing, partially completed, review may not be the same.

Schedule 2 to the new Act contains a series of transitional provisions, some of which have already been referred to. Section 2 of the Schedule specifically provides that the Schedule “…does not affect or take away from the Interpretation of Legislation Act 1984.” That Act (“the ILA”) contains legislative provisions which are concerned with the effect of the repeal or amendment of a statute or part of a statute on rights and obligations acquired by a person before that repeal takes effect. One such provision is s 14(2) which, as far as relevant to this case, is in the following terms:
14 (2) Where an Act or a provision of an Act-
(a) is repealed; or
(b) expires, lapses or otherwise ceases to have effect-
the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears-
(c) …
(d) …
(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;
(f) …
(g) affect any...legal proceeding or remedy in respect of such right …as is mentioned in paragraphs (e) and (f)-
and any such…legal proceeding or remedy may be…continued or enforced…as if that Act or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.

Paraphrased, this provision means that unless a contrary intention is expressed in a repealing or amending Act, a right acquired before an Act is repealed or amended is not affected by the amendment or repeal. A legal proceeding in respect of such a right is not affected by such repeal or amendment and may be continued as if the repeal or amendment had not occurred.

No reference to the ILA was made during the hearing of the argument in this case in January 2010. Accordingly, upon reaching the tentative conclusion that the old Act did apply to Mr Fletcher’s case because of s 14(2) of that Act, I informed counsel of that tentative conclusion and re-listed the case for further argument on 21 April 2010. Senior Counsel for each party supplied the Court with a short note of his position on the question prior to that hearing.

Senior Counsel for Mr Fletcher, not surprisingly, enthusiastically embraced the proposition that the old Act continued to apply to Mr Fletcher’s review. Senior Counsel for the Secretary, however, did not abandon his earlier position that the new Act applied. He relied on the Parliamentary intention derived from a reading of Schedule 2 to the new Act as a whole and called in aid s 35 of the ILA. He argued that there was a sufficient contrary intention expressed by Parliament in Schedule 2 to displace the operation of s 14(2) of the ILA.

He referred to J & P Lemming Holdings Pty Ltd v O’Keefe,[12] in which Brooking J undertook a thorough analysis of s 14(2), particularly with respect to the effect of the phrase “unless the contrary intention expressly appears”. His Honour pointed out that the predecessor of s 14(2) of the ILA, s 7(2) of the Acts Interpretation Act 1958 did not contain the word “expressly”, nor did the Bill on which the 1984 Act was based. That word was evidently inserted on the recommendation of the Legal and Constitutional Committee to avoid the possibility of the relevant intent being implied into an Act which was otherwise affected by s 14(2). His Honour referred to decisions in which the word “express” or “expressly” had been construed as meaning no more than “plainly” or “clearly”: Chorlton v Lings;[13] Beresford-Hope v Sandhurst;[14] DeSouza v Cobden[15] and Healey v Festini.[16] He also referred to Shanmugam v Commissioner for Registration of Indian and Pakistani Residents[17], in which the Privy Council had held that an “express provision” is a provision the applicability of which does not arise by inference. In the event, Brooking J found it unnecessary to express any opinion as to the effect of the words “unless the contrary intention expressly appears” in s 14(2). Even on the widest possible view of the effect of those words, no contrary intention appeared in the legislation with which he was concerned.
[12][1984] VR 1005.
[13](1868) LR 4 CP 374.
[14](1889) 23 QBD 79.
[15][1891] 1 QB 687.
[16][1958] VR 225.
[17][1962] AC 515; [1962] 2 All ER 609.

Counsel for the Secretary also referred to TAC v Lanson.[18] In that case, this Court was concerned with recovery rights which the TAC might have against a tort‑feasor in circumstances where it had paid death benefits to the dependants of a person who died as a result of a transport accident. The question of whether a contrary intention appeared “expressly” in an amending Act was considered by the Court, which appeared to accept that “expressly” meant other than by implication. Phillips JA referred to an intention appearing “expressly” in contradistinction to one which could be clearly evinced otherwise.[19]
[18](2001) 3 VR 250.
[19](2001) 3 VR 250 at 273 (Phillips JA).

Counsel for the Secretary also referred to the Second Reading Speech on the Bill which became the new Act.[20] Of that Bill, the Minister for Corrections said:
“The bill also establishes that offenders currently subject to an extended supervision order or interim supervision order under the Monitoring Act are eligible offenders. These offenders will be subject to orders under the Monitoring Act until they are brought before the Court upon their scheduled review or as a review or renewal application is made, or on an appeal. At this time the offender will be subject to the new detention and supervision scheme, and all that it entails.”
[20]Hansard. Legislative Assembly 12 November 2009 p 4034.
Counsel also referred to the specific provisions in Schedule 2 to the new Act, which, he submitted, evinced a clear intention to apply the new Act to existing ESOs when they were reviewed. His argument explained the existence of s 2 of Schedule 2 to the new Act as having been included to ensure that s 35 of the ILA, which requires a purposive approach to statutory interpretation, be applied to the interpretation of the new Act.

The Secretary’s argument that the new Act applies to ESOs as they come up for review is undoubtedly correct, but there is nothing in Schedule 2 to the new Act, or any other part of it, which excludes the operation of s 14(2) of the ILA such as to require the application of the new Act to a review which is part heard at the time the new Act commences and the old Act is repealed.

Mr Fletcher was given leave pursuant to s 21(3) of the old Act to have his ESO reviewed by this Court on 23 June 2008. He thus acquired a right to commence a legal proceeding, or to take a step in an existing legal proceeding[21], for which leave was required. He commenced that proceeding or took that step on 24 June 2008 when he brought this application for review. At the time the old Act was repealed he had acquired the right which he was in the process of exercising by pursuing a legal proceeding which had not been completed. Such a right is a right within the meaning of ss 14(2)(e) of the ILA and this review is a legal proceeding in respect of that right. Accordingly, if that provision is not otherwise excluded as applying to this review then the review may be continued to completion as if the old Act had not been repealed.
[21]If Cummins J’s characterisation of a review of an ESO was correct. See Secretary to the Department of Justice v Fletcher (Ruling No 3) [2009] VSC 503.

A statutory provision to the same effect as s 14(2) of the ILA (s 8 of the Acts Interpretation Act 1901 (Cth)) was considered by the High Court in Esber v The Commonwealth.[22] The Court held that a statutory right to have an administrative decision reconsidered and determined by a tribunal was a right protected by s 8. The abolition of the right by repeal of the enabling statute was ineffective to deny the plaintiff the right to proceed with the review which he had sought before the repeal took effect. The Court said of the plaintiff’s right in that case:
“It was not merely “a power to take advantage of an enactment”.[23] Nor was it a mere matter of procedure[24]; it was a substantive right.[25] Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent.”[26] This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.”[27]

Here the review process having been commenced by Mr Fletcher (and almost completed) before the repeal of the old Act, that repeal was similarly ineffective.

[22](1991) 174 CLR 430.

[23]Matheson v Burton (1971) 124 CLR 1, 23 (Gibbs, J); and see Robertson v City of Nunawading [1973] VR 819.

[24]See Newell v The King (1936) 55 CLR 707, 711-2.

[25]See, by way of analogy, Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161, 175, 178, 185, 194; Colonial Sugar Refinery Co v Irving [1905] AC 369, 372-3.

[26]Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541, 552; see also Continental Liqueurs Pty Ltd v G. F. Heublein and Bro. Inc. (1960) 103 CLR 422, 426-7; Director of Public Works v Ho Po Sang [1961] AC 901.

[27](1991) 174 CLR 430, 440-1.

Section 14(2) of the ILA applies to this review “...unless the contrary intention expressly appears“. Nowhere in the new Act, including Schedule 2, where it would be expected to appear, is there any expression of Parliamentary intention to exclude the ordinary operation of s 14(2) in the case of an accrued right to bring a proceeding or take a step in an existing proceeding to review an ESO. If anything, s 2 of Schedule 2 is an express provision requiring the ILA to be given full force and effect. Accordingly, this review must be completed as if the old Act had not been repealed and replaced by the new Act.

As far as the old Act is concerned, amendments made to it by yet another statute, the Serious Sex Offenders Monitoring Amendment Act 2009, altered the structure of the review provision, s 23, as it had been at the time Mr Fletcher was granted leave and at the time he instituted this review proceeding. Two subsections were inserted as follows:
(2A) For the purposes of subsection (1), an offender is likely to commit a relevant offence if there is a risk of the offender committing a relevant offence and that risk is both real and ongoing and cannot sensibly be ignored having regard to the nature and gravity of the possible offending.
(2B) For the avoidance of doubt, subsection (1) permits a determination that an offender is likely to commit a relevant offence on the basis of a lower threshold than a threshold of more likely than not.
These amendments commenced on 11 February 2009. Section 23(1), to which they refer is the operative provision of Division 3 of Part 2 of the old Act. It prescribes the fact which the Secretary must establish to maintain the continuance of the ESO being reviewed and prescribes the standard of proof to which she must establish that fact.

By a further provision inserted into the old Act by the amending Act, s 23(2B) is given retrospective effect. The Parliament has declared that the fact required to be proved by the Secretary to maintain the ESO being reviewed has always been able to be proved on the basis of a lower threshold than a threshold of more likely than not.[28] However, sub-section (2A) is not retrospective in its operation. By its terms it is effective to exclude the operation of s 14(2) of the ILA. Accordingly, s 23(2A) of the old Act does not apply to the fact which the Secretary must prove to maintain Mr Fletcher’s ESO, although s 23(2B) does.
[28]Section 6 of the Serious Sex Offenders Monitoring Amendment Act 2009, which inserts a new s 52 into the old Act in the following terms:
"52 Saving provision—Serious Sex Offenders Monitoring Amendment Act 2009
(1)For the avoidance of doubt, sections 11 and 23 as in force before the commencement day are taken always to have permitted a determination that an offender is likely to commit a relevant offence on the basis of a lower threshold than a threshold of more likely than not.
(2)Nothing in subsection (1) affects the rights of the parties in the proceeding known as RJE v Secretary to the Department of Justice (No. 131 of 2008) in the Court of Appeal.
(3) In this section commencement day means the date of commencement of the Serious Sex Offenders Monitoring Amendment Act 2009."

Before concluding the question of which Act applies to this review, it is necessary to refer to the automatic review provisions of the old Act. Those provisions are found in s 21. Section 21(1) required the Court to undertake a review of an ESO no later than 3 years after it was first made. That review was to be initiated by an application to the Court by the Secretary pursuant to s 21(2)(a).

Mr Fletcher’s ESO was imposed on 29 May 2006 by Gillard, J. It was due for automatic review no later than 29 May 2009. But at that date the review initiated by Mr Fletcher by leave – this review – was on foot. It had been initiated almost a year earlier. At the directions hearing on 17 December 2009, Senior Counsel for the Secretary raised the fact that the automatic review had not taken place but said that “that doesn’t affect anything.” Senior Counsel for Mr Fletcher did not demur to that assertion. The Secretary had taken no step to initiate the automatic review pursuant to s 21(2) and it appears that the parties assumed that Mr Fletcher’s application would, in effect, achieve the same result. His ESO would be reviewed. They also assumed at that time that the new Act applied to that review.

Having regard to my conclusion as to the effect of s 14(2) of the ILA on the events which have occurred here it would have made no difference if the Secretary had initiated an automatic review in May 2009 as she was required by the old Act to do, or, for that matter, had initiated a review of her own motion pursuant to s 21(2)(b) at any time before the commencement of the new Act. Mr Fletcher’s rights, which I have found were protected by s 14(2) of the ILA, were pre-existing at all relevant times. Senior Counsel for the Secretary was correct when he said that the failure to initiate the automatic review did not affect anything. It didn’t. Thus, this review must be determined by the application of the old Act, as amended to include s 23(2B) but not s 23(2A). It follows that no question of the conditions to be imposed by the Court on an ESO will arise if the ESO is maintained. The conditions on it will be those already in existence by virtue of s 15 of the old Act.

Victim’s Submissions

Shortly before this matter came before the Court for argument on 13 January 2010 the Court received a submission from one of the persons in respect of whom Mr Fletcher had originally been convicted before Harper, J in 1998. That submission, which had attached to it a psychiatric report, was tendered pursuant to s 94(1) of the new Act, which was then assumed by all parties to apply to this review.

As questions arose as to the publication of this submission to Mr Fletcher and his lawyers, it was necessary to arrange with the representative of the person who made the submission (the Victims Support Agency) for it to be appropriately redacted as contemplated by s 95 of the new Act. This took some time and was not completed until well after counsel had completed their submissions, by which time the question of which Act applied to the review was a live issue. As serious questions arose as to the use this material could be put on the review, submissions were invited by the Court from the parties to be considered, as appropriate, if the new Act applied. The exchange of these submissions did not conclude until 19 February 2010.

Having regard to the conclusion I have reached that the old Act applied to this review and the fact that that Act did not provide any mechanism for a non-party to intervene in the review of an ESO, this victim’s submission, and its attached psychiatric report, must now be regarded as legally irrelevant to the question the Court must decide. The Secretary, in her submission dated 19 February 2010 concerning the victim’s submission, did not argue to the contrary.

Although s 23(3) of the old Act permits the Court on a review of an ESO to have regard to “anything else it considers appropriate” in determining whether the offender is likely to commit a relevant offence, that wide discretion must be read subject to the ordinary requirements of relevance, procedural fairness and the rules of evidence. In this case, although the victim’s submission may have been relevant to conditions which might have been imposed on an SO, had such an order been in contemplation, it did not contain any material of legal relevance to the primary issue now to be decided, so that it would be excluded on that ground even if it could have otherwise been referred to.

Discretion

Section 23(1) of the old Act requires that to maintain Mr Fletcher’s ESO the Secretary must satisfy the Court, to a high degree of probability, that he is likely to commit a relevant offence if in the community and not subject to the ESO. If she does so the ESO remains in force. The Court has no discretion to refuse to continue the ESO. It continues of its own force. The discretion, conferred by s 11 of the old Act, on the Court when it made the ESO in the first place does not exist in respect of a review. The Secretary’s task is to establish, to the requisite standard of proof, a particular fact: that the offender is likely to commit a relevant offence if in the community and not subject to the ESO. She does not have to persuade the court to exercise any discretion in her favour.

Standard of Proof

Although s 23 of the old Act has not been considered by the Court of Appeal, s 11 has, on two occasions: TSL v Secretary of the DOJ[29] and RJE v Secretary to DOJ[30]. In TSL Callaway AP considered the construction of s 11. His Honour rejected a construction which would have read the words “high degree of probability” as performing a similar function to the words “the balance of probabilities” or “beyond reasonable doubt” in a discussion of the civil and criminal standards of proof respectively. He preferred a construction which gave an ambulatory meaning to the word “likely”: a meaning liable to vary according to context. He referred to Boughey v R[31] where the High Court considered the meaning of “likely” in the context of the offence of culpable homicide by an act “known to be likely to cause death” under s 157 of the Tasmanian Criminal Code. Their Honours considered that in that context it conveyed the notion of a “substantial – a ‘real and not remote’ – chance”. Callaway AP considered that:
[29](2006) 14 VR 109.
[30][2008] VSCA 265.
[31](1986) 161 CLR 10 at 20 (Mason, Wilson and Deane JJ).
“Not surprisingly, Parliament considered that threshold to be too low. The expression “to a high degree of probability” was included to show that, in this context, “likely” connotes a high degree of probability.”

His Honour thus construed the section as requiring the court to be satisfied that there is a high degree of probability that the offender will commit a relevant offence before an ESO can be imposed. His Honour said

“10… It is understandable that Parliamentary counsel would have chosen the word “likely” in relation to a future state of affairs but almost inconceivable that Parliament would have intended that word to bear its ordinary meaning. All too many offenders are likely, in that sense, to commit a relevant offence. A person subject to an extended supervision order is a prisoner in all but name. The threshold would be far too low, in a free society, if a court had a discretion to make an extended supervision order simply because it was satisfied that there was “a substantial – a “real and not remote” – chance” of his or her re-offending. That is why the word “likely” is used in the sense of a high degree of probability.
11I desire to guard against misunderstanding. To say that “likely” is used in that sense does not mean that the Secretary must prove that it is more likely than not that a person will commit a relevant offence. Likelihood, in the ordinary sense of that word identified in Boughey v R, includes a low degree of probability. What the legislature requires the court to be satisfied of is a high degree of probability. There is no reason to think that it must be more than 50 per cent. With experience, it may be possible to be more precise, but we should always return to the words the legislature has chosen and the context in which they appear.
12The conclusion that the word “likely” is used in the sense of a high degree of probability accords with the main purpose of the Monitoring Act as stated in s.1. The Act is concerned with offenders who are a serious danger to the community. It also accords with the second reading speeches, which explained that the legislation was aimed at high risk offenders and offenders assessed as being at high risk of re-offending.”

Buchanan JA and Coldrey AJA agreed with Callaway AP.

In RJE a different constitution of the Court of Appeal (Maxwell P, Nettle and Weinberg JJA) also considered s 11. Their Honours were respectfully critical of Callaway AP’s analysis in TSL. The three members of the Court considered that the phrase “likely to commit a relevant offence” meant “more likely than not to commit a relevant offence”; the court would need to be satisfied that there was a greater than 50 percent chance that a relevant offence will be committed if the offender was released unsupervised. Maxwell P and Weinberg JA declined to follow TSL although it had already been followed in two cases in the New South Wales Court of Appeal: Tillman v Attorney-General (NSW)[32] and Cornwall v Attorney-General for New South Wales[33]. Because it had been followed in those cases Nettle JA considered it appropriate not to depart from it in RJE.
[32](2007) 178 A Crim R 133.
[33][2007] NSWCA 374.

Whatever might have been the correct result in RJE the legislature acted swiftly to amend the old Act by inserting the two subsections in each of ss 11 and 23 already discussed[34], only one of which applies to the review of Mr Fletcher’s ESO. The insertion of subsection (2B) into each of ss 11 and 23 of the old Act, together with the declaratory provision inserted as s 52(1) have the combined effect of statutorily enshrining Callaway AP’s opinion concerning the requisite degree of likelihood required to satisfy ss 11 and/or 23 as the particular case requires.[35]
[34][38]-[40] above.
[35]Hansard. Legislative Assembly. 3 February 2009 p 32-3. Serious Sex Offenders Monitoring Amendment Bill, Statement of Compatibility and Second Reading Speech.

Relevant Offences

The reference to a “relevant offence” in ss 11 and 23 of the old Act is a reference to an offence included in the schedule to the Act. Again, there has been legislative intervention with respect to the schedule since the old Act was enacted in 2005. The list of relevant offences is now very long, containing over 40 different sex offences or classes of sex offence against both children and adults. Although the list was last added to in 2008 – after Mr Fletcher’s ESO was originally made – it applies to define the term “relevant offence” for the purposes of this review.[36]
[36]Section 24 Justice Legislation Amendment Act 2008.

In the course of the hearing Senior Counsel for the Secretary provided a list of offences which he submitted as being likely to be committed by Mr Fletcher if he is not subject to an ESO. That list contained those offences which would be expected. There were a number of sex offences against children or minors and also a number of offences found in Part IIIA of the Crimes Act 1914 (Cth) – a part of that Act concerned with “child sex tourism”. Specifically it includes offences of engaging in sexual intercourse with a child under the age of 16 years outside Australia, encouraging conduct of a kind that would constitute an offence against Part IIIA of the Crimes Act 1914 and committing an act of indecency on or in the presence of a person under the age of 16. The latter offences are particularly pertinent, in this case, because of the letters which Mr Fletcher wrote to people in Ghana, some of which could be interpreted as expressing a wish or even an intention to engage in such criminal activity outside Australia.

The Evidence

The written material tendered on behalf of the Secretary was vast. It consisted of:
• Four lever arch folders containing 900 pages of Court Book consisting of Court documents, and psychiatric, psychological, medical and other reports and affidavits concerning Mr Fletcher.
•An affidavit of Ruth Ann Goonan sworn 30 March 2006 together with 143 exhibits comprising approximately 2,500 pages contained in six lever arch folders. This material included witness statements concerning the matters to which Mr Fletcher pleaded guilty before Harper J in 1998, transcript of the committal in respect of those matters, miscellaneous medical reports and other documents concerning Mr Fletcher back to 1969, a psychological report of the Ararat Prison psychologist of 2004, correspondence between Mr Fletcher and various other people between 1996 and 1999, 12 documents concerning a discrimination complaint which Mr Fletcher took to the VCAT in about 2005, 19 documents concerning Mr Fletcher’s prior convictions and 22 miscellaneous documents from 1999 to about 2005 concerning Mr Fletcher. All of these documents were said to be source material for Assessor One’s[37] assessment report of 27 February 2006.
•An affidavit of Trudie Pamela Griffin of 24 December 2008 together with four lever arch folders of exhibits being 77 various documents concerning Mr Fletcher including notes made by supervisors, escort officers, case workers, psychiatrists together with residential environment scanning and suitability assessments. Also exhibited were 18 documents referred to in Assessor One’s report of 13 November 2008. The exhibits to Ms Griffin’s affidavit amounted to approximately 1,000 pages.
•Four lever arch folders entitled “Case material referenced in the table summary of incidents”. These folders, comprising about 1,200 pages appear to relate to Mr Fletcher’s accommodation and activities since the ESO was imposed on him.
•A second affidavit of Trudie Pamela Griffin sworn 29 May 2009 with one lever arch folder of exhibits comprising a large number of contact/duty notes written by various officers of the Department of Justice, supervision case notes, evaluations, incident reports and, in particular, a statement of Ian Martin Lennox Webb together with a lever arch folder of copy letters written by Mr Fletcher to persons in Ghana intercepted by Mr Webb and read by him on 21 December 2005. Mr Webb is a senior prison officer at Ararat Prison.
[37]Cummins J ordered suppression of publication in the media of the names of Assessors who provided assessments in terms of the old Act in respect of Mr Fletcher in this proceeding: See [2009] VSC 502. As no application has been made to lift this order it remained in place during the hearing of this review and continues until the Court otherwise orders.
In the course of the hearing of this matter and argument presented by counsel for the parties very few references were made to the above material. The relevance of much of it was very tenuous. Repetition of documents and repetition of material found in one document in subsequent documents was common. It is very unfortunate that some disciplined discrimination was not applied to this material before it was tendered. Disclosure to Mr Fletcher’s lawyers and rational discussion of the use to be made of the material would have resulted in large savings of time and cost. Careful selection of only the most relevant documents which went directly to the issue to be resolved should have been undertaken. Modern litigation practice demands no less.

Statutory Assessment Reports

The most significant document required to be provided on a review of an ESO is an “assessment report”. An assessment report is a report by a psychologist, a psychiatrist or some other prescribed health service provider concerning the offender. It is written following a personal examination of the offender and must be directed to eight specific matters set out in s 8 of the old Act. These matters relate directly to the likelihood of the offender re-offending. The most significant characteristic of an assessment report is that it must contain the assessor’s assessment of the risk that the offender will commit another relevant offence if released without being subject to an ESO and must give reasons for that assessment. As Maxwell P and Weinberg JA pointed out in RJE v Secretary to Department of Justice[38], the scheme of the (old) Act makes it clear that the expert’s assessment of risk is of the highest importance to the process of decision making. Their Honours noted that an assessment report is the only matter which the court is obliged by the Act to take into account. It contains an opinion of a medical expert going to the very question the Court itself must ultimately decide.
[38][2008] VSCA 265.

In this case there are three formal assessment reports written by Assessor One, a psychologist, on 27 February 2006, 13 November 2008 and 6 April 2009. There are also a large number of other reports written by psychologists, psychiatrists and other medical experts concerning Mr Fletcher. They were obtained either on his behalf or on behalf of various elements of the Executive Government. The authors of some of them as well as Assessor One were called as witnesses before Cummins J and were examined and cross-examined as to their opinions. Of all these experts, however, it seems that the parties regarded Assessor One, Professor James Ogloff and Dr Danny Sullivan as being the most important. Although Assessor One was, in effect, employed by the Secretary, Professor Ogloff by Forensicare and Dr Sullivan as a private consultant Forensic Psychiatrist, these three experts were able to write a joint opinion concerning Mr Fletcher which was tendered in evidence. They also all gave evidence before Cummins J on 27 October 2009 in a concurrent session. In the course of that evidence they reached a large degree of agreement as to most of the matters which are central to the proper determination of this proceeding. Their evidence and their opinions, together with those of the other significant medical experts, will be examined subsequently.

History and Antecedents

It is convenient to commence an evaluation of Mr Fletcher, his criminality and the likelihood of his re-offending with a review of his antecedents including his criminal history. This material was set out in the first assessment report written by Assessor One in accordance with s 8 of the old Act in support of the Secretary’s application for the ESO in 2006. Although Assessor One was cross-examined in this proceeding before Cummins J, and some of her conclusions challenged, no issue was taken with her understanding of Mr Fletcher’s background. She had gained this understanding from a large number of documents to which reference has already been made and which are formally before the Court. No issue was taken by Senior Counsel for Mr Fletcher with any of the history and antecedents recorded by Assessor One even though it became apparent to the Court on reading the material that Mr Fletcher was not always consistent in providing histories to those who sought them from him.

Mr Fletcher was born on 30 July 1956. He was adopted as a baby on the death of his mother by what he described as an openly affectionate traditional Catholic family. However he said that some of his cousins were “hidden traditional pagans”. As a result he claims to have been exposed to pagan rituals as a young boy including sexual rituals involving sexual intercourse and fellatio. His education was unremarkable. At a young age he was diagnosed with Ehlers-Danlos Syndrome which caused him to have hyper-extensibility of his joints, abnormalities of his skin and cardiac disease resulting in an abnormal cardiac rhythm. He said that he was regarded as “different” at school and was described as “eccentric and intellectually self-indulgent”. After matriculating, Mr Fletcher studied Arts at the University of New England and subsequently at a theological college. By about the age of 20, he was in receipt of a disability pension. He subsequently contracted diabetes, which resulted in progressive glaucoma, which has caused him a loss of vision. He has been legally blind for many years.

Mr Fletcher married at the age of 22, which marriage produced a son. He has had no contact with this child since he was an infant. Nor has he had any contact with his former wife. Subsequently, and immediately prior to his incarceration in respect of the offences which resulted in his ESO, Mr Fletcher had a de facto relationship which persisted for some time, but eventually broke down.

Between about 1990 and 1996, Mr Fletcher offered services as a drug abuse and sexual guidance youth counsellor. He used premises in South Caulfield from which his then partner conducted another business. It was whilst engaging in these activities that he met the two young girls who became the victims of the offences to which he pleaded guilty in 1998. The offences occurred in 1996 when these two girls, aged 15 and exceptionally vulnerable as a result of their background, their behaviour and other social factors, were subjected to violent sexual acts. These acts involved their being whipped and beaten on their naked backs and buttocks with objects including a riding crop, causing pain and physical injury. In respect of one of these girls, Mr Fletcher digitally penetrated her vagina, although later he claimed that he was adjusting her tampon so she would not suffer any extra discomfort in the course of the activity in which he was engaged. He explained his behaviour as being part of a pagan ritual, justified by his religious beliefs which he described as “Wiccan.” Subsequent to his arrest for these offences he sought the assistance of a fellow prisoner to have the two girls killed so that they could not give evidence against him. It was in respect of this activity that he was charged and pleaded guilty to attempting to pervert the course of justice. Both girls suffered much as a result of these offences.

Mr Fletcher’s prior criminal history commenced in 1984. He has convictions for false imprisonment, theft, living off the earnings of prostitution, managing a brothel, possessing a pistol without a licence and the offences to which reference has already been made. Of his prior offences, the false imprisonment in 1983 may have had a sexual flavour in that the victim (who was abducted because Mr Fletcher believed he had tried to rape his (Fletcher’s) then wife) claimed his testicles had been fondled and a substance applied to them in the course of that offence. Assessor One noted that the records relating to these offences showed a pattern of behaviour by Mr Fletcher which involved control and manipulation of others. They also, of course, demonstrate a less than adequate respect for the law.

During his incarceration for the 1998 offences, Mr Fletcher had a number of sessions with psychologists in the prison system who explored the possibility of his addressing his offending by engaging in sex offender programmes which were, or might have been, available. These interventions were largely ineffective. Whilst he expressed a willingness to engage in offence-specific treatment, he appears to have successfully avoided doing so by recourse to pseudo-intellectual verbal games. In bizarre and grandiose language he challenged the basis for such treatment and engaged those seeking to discuss it with him in largely meaningless conversations. This sort of behaviour has been a feature of his interaction with corrections staff since his release from prison as well as whilst he was serving his sentence.

Assessor One referred to the religious beliefs which Mr Fletcher has consistently claimed to profess, which involve ritualised sexual activity, including activity with children. She referred to a number of letters intercepted by prison authorities which Mr Fletcher wrote to men in the West African state of Ghana. Most of these letters which, with enclosures, consisted of upwards of 30 pages each, were mostly written in the period 2005-2006, shortly before Mr Fletcher was due to be released on parole. In them, he speaks of bringing business opportunities to Ghana, as well as his religion. They dwell on sexual matters including his wish that even young children be initiated into sexual practices. They will be referred to subsequently with respect to the evidence of another psychologist, Mr Ryan Teuma. It is significant that no explanation has ever been given for these letters by Mr Fletcher.

Assessor One concluded from these letters, and from other investigations she did, including an interview with Mr Fletcher himself on 10 February 2006, that he regarded his religion as ritualised sexual activity. He described diverse deviant sexual interests as his religion and maintained that any attempt to stop him engaging in these activities amounted to religious persecution.

Assessor One regarded the Ghanaian correspondence as evidence of Mr Fletcher’s ongoing attempts to engage recruits and manipulate others into deviant sexual activity, which he regarded as central to the practice of his religion. She took into account psychiatric evidence which she had seen (of which there is ample in this case), which described Mr Fletcher as having a personality with both narcissistic and antisocial traits. She regarded this diagnosis as consistent with his long-term behaviour, including what she described as his lack of empathy, belief in his own superiority, difficulty in intimate relationships, disregard for and violation of the rights of others, deceit and manipulation, and a tendency towards irresponsible and exploitative sexual relationships.

Assessor One applied two actuarial instruments to Mr Fletcher’s circumstances in an attempt to predict his risk of re-offending. These instruments, called Static-99 and SONAR, combine a number of known characteristics and risk factors such as prior offences, type of offences, etc, in respect of the subject offender and compare them to observed characteristics of a group of offenders. They produced a result in Mr Fletcher’s case which placed him in a high and high moderate risk of re-offending, respectively.

In cross-examination of Assessor One and in argument, Senior Counsel for Mr Fletcher criticised Assessor One’s use of these instruments and pointed to slightly different results obtained by others using the same instruments. This criticism had some basis but because of the almost unique nature of Mr Fletcher’s personality little weight can be given to such instruments in his case.

Assessor One referred to what she described as “protective factors” which might be thought to assist in containing Mr Fletcher’s risk of re-offending. Specifically, she mentioned his health, including his failing eyesight, which might limit his opportunity to re-offend, and, finally, his own assertion that he would practice his religion “alone” and therefore would not offend again. She addressed the matters referred to in s 8(1) of the old Act and concluded, as she was required pursuant to s 8(2), that:
“Consideration of Mr Fletcher’s history and current situation against empirically determined static and dynamic risk factors suggest a probability for high risk of sexual re-offending against children.”

On the basis of that assessment and because of Mr Fletcher’s acquiescence, Gillard J made the ESO the subject of this review.

Assessor One wrote a second assessment report dated 13 November 2008. That report canvassed much of the information in the first report and, as well, described Mr Fletcher’s living arrangements under the ESO at Ararat since it was imposed. As well as rehearsing the materials she relied on in reaching her conclusion in her first report, Assessor One noted a number of significant matters which had occurred in the intervening period. She referred to psychiatric opinions concerning Mr Fletcher and to attempts at treatment undertaken by Mr Teuma, a forensic psychologist involved in the sex offender programmes offered by corrections authorities. Mr Fletcher apparently participated in 16 sessions with Mr Teuma between June 2006 and May 2007, but nevertheless, his beliefs appeared to remain fixed. She noted a report of Mr Teuma to the effect that Mr Fletcher claimed to him that:
·     children are biologically ready for sexual activity once their bodies start puberty aged 12 to 14 years;
·     those children who are abused in this life were sexual abusers in past lives;
·     a 14 year old may have a reincarnated soul and be more mature due to their previous life experiences as an adult;
·     Australian laws on consent are erroneous and needed to be changed for the survival of humanity;
·     pubescent children need to be coached and trained about sex by older adults for their long-term sexual adjustment; and
·     a 50 year old male and a 12 to 14 year old female may have been sexual partners in a past life.
Mr Teuma reported Mr Fletcher’s views on sex education, which included the proposition that “childhood innocence is a recent social construction” and that “once a child can masturbate or ejaculate, they are ready for sexual education by an experienced adult”. He reported that he regarded offence-specific treatment as of little value to Mr Fletcher, although he had developed a sound therapeutic relationship with him. He considered Mr Fletcher as having no insight into his sexual offending behaviour and that he routinely engaged in debate and contest when his cognitive distortions were challenged.

Assessor One also had access, at that time, to the psychiatric reports she had used in her first assessment, and a number which had been generated in the meantime. Their conclusions were not materially different. Mr Fletcher was also subjected to a number of standard psychological tests, again with results consistent with his past assessments. Assessor One noted that Mr Fletcher told her at interview on 18 July 2006 that he was “in full anti-cooperation mode”. He regarded the ESO as an infringement of his human rights and that it was imposed only as a means of denying his religious freedom. He told Assessor One that he had been on a hunger strike since the date of the ESO, that he was not eating solid food and would not do so until he was relocated to Melbourne. At the date of Assessor One’s report he was receiving daily medical visits by a general practitioner, two hourly physical checks by corrections staff and was offered three meals a day provided by the Ararat Prison kitchen. He refused to eat any of the food.

Mr Fletcher had been, for some time, involved with a church known as the Church of Antioch of which a Mr and Mrs Wilburn were members. Mr Wilburn was described as a priest of the Antioch Church. Although Mr Fletcher proposed that he would live temporarily with the Wilburns whilst under the ESO, an assessment of the suitability of that accommodation by Corrections Victoria resulted in his proposal being rejected. Similarly, an attempt by him to undertake employment at a call centre for an energy company in West Melbourne was rejected as unsuitable by Corrections Victoria.

Assessor One applied actuarial and clinical prediction techniques to form an opinion that on whatever measure was used, Mr Fletcher fell into a high risk category of re-offending. She said that whilst it is difficult to predict the nature of future sexual offending, given Mr Fletcher’s history of sexual behaviour and the diversity of his sexual interests and beliefs, “… further offending against underage male or female victims is not beyond the realms of possibility”. She conceded that his health and vision impairment might reduce or mitigate his risk and that his personality disorder makes him incompatible with successful engagement in offence-specific programmes. The treatment provided by Mr Teuma over 11 months was ineffective.

Assessor One again assessed Mr Fletcher and provided a report dated 6 April 2009. She reviewed a range of material and noted a number of matters which had occurred in the period since her last report. Mr Fletcher was still refusing to consume any food (presumably solid food). He had sought to have the conditions of his ESO changed so that he could have contact with children under 18 years. Assessor One concluded that this suggested that he continued to disregard contact with children as a high risk situation for himself. He continued to attend the Church of Antioch where, she notes, he appeared to be viewed in the role of a teacher and exerted significant influence over the congregation. Assessor One expressed concern that in the absence of supervision, the Church of Antioch represented an opportunity for Mr Fletcher to establish and maintain contact with children. She regarded his acting as an adviser or counsellor as being similar to his previous offending situation and, accordingly, of concern. Assessor One concluded her report with an opinion that Mr Fletcher still fell into the high risk category for re-offending.

Assessor One was cross-examined before Cummins J. In the course of that cross-examination, she maintained her opinion that Mr Fletcher represented a high risk of re-offending. She said:
“I think it’s difficult to draw any conclusions other than he represents a high risk of re‑offending given that there is nothing essentially that has changed in terms of his beliefs, his attitudes about his offending from when I first saw him in 2006 for the first supervision order assessment until now and in fact, I think in many respects some of the later material that has – and incidents that have been documented by Corrections Victoria staff since he’s been under supervision just make me, I guess, firmer in my view that there is a real capacity to manipulate and engage others in his behaviour and that is a concern.”
Assessor One conceded that Mr Fletcher had said that he did not intend to re‑offend. However, she said any assessment depends on what weight can be placed on his guarantee that he will not offend as opposed to his being able to demonstrate that he has the capacity not to do so.

In the course of cross-examination, none of the factual material concerning Mr Fletcher upon which Assessor One based her opinions was challenged.

Other Psychiatric and Psychological Opinion

There was a large number of psychiatric reports in the material tendered. They demonstrate a remarkable consistency of diagnosis of Mr Fletcher’s psychiatric state between the first of them in January 1998 and the last in April 2009.

Dr Ruth Vine, a consultant psychiatrist, examined Mr Fletcher in January 1998. Her diagnosis, after her examination was that Mr Fletcher did not suffer from a psychotic disturbance, but he had a personality disorder with very strong narcissistic and antisocial traits. Dr Vine was not cross-examined on her report.

Dr Lester Walton, another consultant psychiatrist with much forensic experience, examined Mr Fletcher on 23 April 2004 at the request of the APB. Mr Fletcher was, at that time, still serving the sentence imposed on him by Harper J. Dr Walton considered Mr Fletcher to be of above average intelligence and having no discernible mental illness. He was markedly physically disabled. Dr Walton expressed the view that he was not confident that participation in a sex offenders treatment programme would be of benefit to Mr Fletcher, but that it should be tried.

Dr Walton examined Mr Fletcher again on 29 May and 6 June 2009. He confirmed Mr Fletcher’s narcissistic and antisocial behavioural characteristics. He noted that he was currently subject to an ESO and that he continued to believe that ‘sex and religion are intertwined”. He said that Mr Fletcher continued to hold pro‑offending fixed beliefs and attitudes, and continued to deny any harm caused to his victims. He rationalised his sexual offences by couching them in his “Wicca” belief system. Dr Walton considered this functioned to absolve him from accepting responsibility. Like other psychiatrists who have examined Mr Fletcher, he thought that his physical disabilities might have some implications in terms of his actual ability to re-offend if he was of a mind to do so. He thought that there was no prospect of Mr Fletcher changing his committed religious ideas and that overall, he presented a “most unusual case.” Dr Walton was not cross-examined on his reports.

Professor Paul E. Mullen, Professor of Forensic Psychiatry at Monash University, examined Mr Fletcher on 20 December 2005. He had seen him previously in 1996 whilst on remand for the charges which eventually led to his imprisonment and subsequent ESO. Professor Mullen was of the opinion that Mr Fletcher’s need to impress and his urge for self-justification lead to his making statements which raise anxieties about his future conduct. If the offences were part of a religious ritual and he continued to adhere to that religion (as he claimed), then, in Professor Mullen’s opinion, it would be difficult to avoid the conclusion that he was at risk of re-offending. Professor Mullen did not consider Mr Fletcher to have any psychotic illness. He thought that he was limited in his abilities to intimidate or coerce others. He was apparently interested in post-pubertal adolescents, not children. He is “not a man with even a modicum of the self-doubt which might motivate an effective engagement in treatment or rehabilitation”.

Professor Mullen noted a number of psychopathic traits in Mr Fletcher, but that his situation was unusual, if not unique. He considered that mental health professionals had no role to play in preventing Mr Fletcher re-offending. Professor Mullen was not cross-examined on his report.

Dr William Glaser, consultant psychiatrist, examined Mr Fletcher on two occasions for Corrections Victoria. On the first of those occasions, on 11 October 2006, he was on his “hunger strike”. Dr Glaser found no clinical indications of any diagnosable psychiatric disorder and thought he should be seen by an expert cardiologist to assess his physical status having regard to his not eating.

Dr Glaser assessed Mr Fletcher again on 2 April 2008. He thought that he had a personality disorder with prominent narcissistic and antisocial traits. He also thought that Mr Fletcher was experiencing a paraphilia or persistent deviant sexual arousal. The ritualised and cruel pattern of his offending behaviours, despite his complex minimalisation and rationalisation of them, would provide very good support for a diagnosis of sadism, thought Dr Glaser. He was of the opinion that the only “protective” feature in respect of Mr Fletcher’s possible re-offending was his blindness.

Dr Glaser gave oral evidence along the lines of his reports and was cross-examined. He agreed that Mr Fletcher was not a paedophile. He said that risk prediction is still an art rather than a science but with the knowledge and information that is available one can make “a reasonable guess” about the risk of re-offending. He considered that Mr Fletcher’s rationalisation of his offending in combination with his willingness to flout society’s norms “is the worry here.”

Dr Glaser disagreed with Professor Mullen as to Mr Fletcher’s sadistic tendencies. He adhered to his view that what Mr Fletcher had done strongly suggested a diagnosis of sadism although he acknowledged the difficulty of diagnosis.

As to Mr Fletcher’s justification for his actions Dr Glaser considered his persistence in such justification despite a long period in gaol suggests that deterrence may not play much part in minimising his risk of re-offending.

Dr Glaser was questioned about Mr Fletcher’s letters to Ghana – particularly in so far as they suggested to the recipients that he might go to Ghana to recruit young girls (even girls of primary school age) and that he could assist with their education expenses. He regarded this material as “very, very disturbing by any measure.” He thought that Mr Fletcher may have been fantasising about such matters for a long time.

Professor James Ogloff, Director of Psychological Services at the Victorian Institute of Forensic Mental Health (Forensicare), examined Mr Fletcher for Corrections Victoria on 7 March 2006. The purpose of this examination was to obtain an independent psychological assessment of Mr Fletcher for the purposes of the original ESO application. Professor Ogloff considered that Mr Fletcher was a man of above average intelligence, attentive and having no symptoms of any mental illness. He had no disordered thoughts or perceptual disturbances, although his mood was flat. He demonstrated no impairment of memory, and Professor Ogloff formed the conclusion that Mr Fletcher did not meet the criteria for any major mental disorder. He did, however, consider that Mr Fletcher qualified for a diagnosis of antisocial personality disorder and also narcissistic personality disorder.

Professor Ogloff acknowledged that research on the prediction of the risk of future offending could be assisted by actuarial or structured risk assessment schemes, the instruments used by Assessor One in this case. However, he considered that due to Mr Fletcher’s extremely unusual history, circumstances and behavioural patterns, such instruments were of limited use in his case. Notwithstanding this, however, he applied two instruments to Mr Fletcher; the Static-99 and the Sexual Violence Risk-20 (SVR-20). According to Professor Ogloff, because Mr Fletcher did not have a high density of sexual offences, has not caused physical harm to his victims, has not used weapons or threats of death in sexual offending and has not shown an escalation in frequency or severity of sexual offending, his score on the SVR-20 suggested a moderate level of risk for re‑offending sexually in the future. Professor Ogloff warned, again, that such prediction instruments would most likely not represent an accurate level of risk in Mr Fletcher’s case because of his peculiar characteristics.

Professor Ogloff considered that Mr Fletcher met the criteria for a diagnosis of antisocial personality disorder, but that such a diagnosis, taken alone, is not particularly informative or helpful in determining a person’s level of risk for future offending. He administered a further instrument, the Psychopathy Checklist-Revised (PCL-R). He said that, when coupled with evidence of sexual deviation, individuals who are psychopathic have been found to be significantly more likely to re-offend sexually. On this instrument, Mr Fletcher’s level of risk for re-offending was in the moderate to high range.

Professor Ogloff considered that Mr Fletcher was not a paedophile, even though the victims of the relevant offences in his case were children under the age of 16 years. He thought that it would not be productive to engage Mr Fletcher in any psychological treatment for sexual offending. He is highly treatment-resistant. Overall, he considered his risk of re-offending to be in the moderate range, but that because he maintains an interest in deviant sexual beliefs and is a highly manipulative and intelligent man, it is likely that he could continue to manipulate people into engaging in sexual relationships with him. Professor Ogloff noted Mr Fletcher’s physical disabilities as being inclined to lower his risk.

Professor Ogloff was a signatory to the joint opinion with Assessor One and Dr Danny Sullivan to which reference has already been made. He also took part in the concurrent evidence exercise before Cummins J during which he was questioned by counsel.

Dr Danny Sullivan, a consultant forensic psychiatrist, examined Mr Fletcher on two occasions at the request of his solicitors, Cinque Morrow. His first examination was on 24 May 2006. In company with the other psychiatrists who have examined Mr Fletcher, Dr Sullivan thought him to be an intelligent man who uses his intellect to support his stance and to justify his practices. He thought that the pleasure he took from the offences for which he was imprisoned were more likely to be related to control and domination than to sexual pleasure. He noted Mr Fletcher’s longstanding belief in pagan religion, which provides a justification for his actions because he intertwines spirituality with sexuality and is prepared to support a range of practices widely regarded as unusual, if not deviant. Dr Sullivan thought that Mr Fletcher had no psychotic disorder and his situation would not satisfy a diagnosis of paraphilia, although, on his own account, he had indulged in less usual forms of sexual practice involving multiple partners, underage partners and people of both genders. Dr Sullivan considered that Mr Fletcher’s offending appears grounded in his personality and desire to control others, which is enmeshed in his arcane belief systems.

Dr Sullivan considered that Mr Fletcher had a propensity to commit further offences because his personality structure, his enthusiasm for his own unorthodoxy and his lack of concern for the rights of others “are the substrate for offending”. He thought that any putative future offending would be violent, rather than sexual. Dr Sullivan thought that Mr Fletcher would not benefit from sex offender programmes, nor from any alternative ‘self-help” programmes which he might undertake.

Dr Sullivan thought that the factors which might reduce Mr Fletcher’s risk of re-offending included awareness of the consequences of such behaviour, an intellectual understanding of the steps that he needs to take to reduce the risk and his poor health and eyesight. He did not consider that these factors reduced the risk absolutely. He agreed with Professors Ogloff and Mullen that it was difficult to apply standard notions to a man who was so abnormal in personality and beliefs and whose offending reflected that abnormality.

Dr Sullivan provided a third report concerning Mr Fletcher in which he addressed Assessor One’s report of 13 November 2008. He noted that he disagreed with Assessor One on her conclusions derived from the Static-99 instrument. He said that in her latest report, Assessor One had described Mr Fletcher as being “moderate-high risk status” of re-offending, but did not explain the disparity between this and an earlier estimate. He again emphasised that the use of instruments such as Static-99 is difficult in the case of offenders like Mr Fletcher. Of particular significance was Dr Sullivan’s opinion that the assessment of any risk is rendered particularly difficult whilst Mr Fletcher remains effectively locked away in Ararat. He concluded by stating that he had not altered his opinion since his previous report and that it was not clear that Mr Fletcher was more likely to offend than not, even if he was not subject to an ESO.

Joint opinion

As has already been noted, Assessor One, Dr Sullivan and Professor Ogloff joined in the adoption of a joint opinion concerning Mr Fletcher. This opinion, which was expressed in a four page document, set out 12 areas upon which all three experts agreed and two on which they disagreed. The areas in which they all agreed may be summarised as follows:
(1)Mr Fletcher suffers from a mixed personality disorder with narcissistic and antisocial features. He is not a psychopath, although he has features consistent with that condition.
(2)Mr Fletcher does not suffer from a major mental illness.
(3)Mr Fletcher has no evidence of clinically relevant cognitive impairment or any condition that impairs his capacity for decision-making or self-control.
(4)Features of Mr Fletcher’s offending are atypical. They are associated with an esoteric belief system, which includes ritualistic and sexualised behaviour. They do not appear to be focused on pre-pubescent children.
(5)Mr Fletcher is not a paedophile.
(6)Mr Fletcher has a strong interest in controlling and manipulating others going beyond mere sexual interest.
(7)Conventional sex offender risk management methodologies are of limited usefulness in Mr Fletcher’s case.
(8)On the Static-99 actuarial predictor, Mr Fletcher rates as moderate-high.
(9)It is not sufficient to rely exclusively on actuarial risk measures to determine an individual’s predictive level of risk for sexual re‑offending.
(10)Although it is accepted that recidivism risk is generally affected by ageing, having regard to Mr Fletcher’s anomalous offending, motivation and characteristics, it is impossible to determine if this applies in his case.
(11)It is unclear as to the extent to which dynamic risk factors should be evaluated in this case.
(12)(a) Mr Fletcher’s risk factors are his personality structure, his conviction in his own beliefs, his resistance to treatment, his past behaviours, including the relevant offences and the absence of pro‑social peers.
(b) His protective factors are absence of substance misuse, cognitive capacity and emotional regulation.
(c) Some unknown factors are deviant sexual arousal, the effect of disability and advancing age.
The three experts disagreed as to whether Mr Fletcher could be said to have a sadistic and/or masochistic paraphilia, and they also disagreed as to their final opinion of his risk of re-offending. Dr Sullivan considered that Mr Fletcher presented a moderate level of risk for relevant offences. Assessor One considered that Mr Fletcher presented a high level of risk for re-offending in respect of relevant offences, particularly because he lacked sufficient protective factors to prevent him from re-offending without ongoing supervision. Professor Ogloff considered that Mr Fletcher represented a moderate level of risk for relevant offending, but conceded that that opinion was limited by the fact that he had not assessed Mr Fletcher since 2006.

These three experts gave concurrent evidence before Cummins J and were questioned by counsel. In that evidence, they discussed their differences as expressed in their joint opinion and each adhered to his or her previously expressed views, although they expanded somewhat upon them and explained some of their opinions in greater detail.

Mr Teuma, a forensic psychologist, who attempted to provide individual treatment for Mr Fletcher between June 2006 and May 2007, wrote a report dated 24 May 2007. He described his 16 treatment sessions with Mr Fletcher and detailed Mr Fletcher’s beliefs surrounding his offending as he expressed them to him.

Mr Teuma undertook research into Wiccan beliefs, a subject which Mr Fletcher raised with him. He noted Mr Fletcher’s response to offence-specific treatment as being one of inflexibility. He quoted Mr Fletcher as saying “I will never change my views on these issues”, adding, “I think that children need sex education the right way done by an older male and female … childhood innocence is a recent social construction … historically, children were seen as little adults … humans should follow their evolutionary biology and once a child can menstruate or ejaculate they are ready for sexual education by an experienced adult.” Despite the expression of these views, Mr Teuma reported Mr Fletcher as claiming to be at “no risk of re-offending” because he now understands the law, is not connected to any pagan group and is unable to entertain sexual fantasy or sexual contact.

Another matter referred to by Mr Teuma was the Church of Antioch. Mr Fletcher was, during Mr Teuma’s treatment, attending the Church of Antioch on a monthly basis. Mr Teuma also attended the Church on 24 September 2006 to determine whether some members of the Church – Bishop Frank Bugge and Bishop Shirley Bugge, Reverend Harley and Louisette – could act as a support and awareness group for Mr Fletcher. Mr Teuma formed the view that this group was not an appropriate support group for Mr Fletcher. He considered that neither Bishop Shirley Bugge nor Bishop Frank Bugge had the capacity to act protectively with respect to Mr Fletcher. Mr Teuma expressed the view that they idolised him as a teacher and guide. They believed that he was innocent of the charges to which he pleaded guilty and that it was the victims” fault. They believed that he could do no wrong and would forgive him for any illegal behaviour.

Mr Teuma concluded his report by proffering the opinion that offence-related treatment was of little value to Mr Fletcher. He has no insight into his sexual offending behaviours and engaged in debate and contest routinely when his cognitive distortions were challenged. He says that Mr Fletcher views himself as at no risk of re-offending.

Mr Teuma gave oral evidence and was cross-examined before Cummins J. He conceded in cross-examination that Mr Fletcher maintained that he would not re‑offend because he understood that, regardless of his beliefs, acting on those beliefs would be contrary to the law.

Jennifer Anne Hosking, the manager of the Sex Offender Management Branch of the Office of Corrections, swore an affidavit dated 8 September 2009 and gave oral evidence and was cross-examined before Cummins J. Much of her evidence related to the treatment of sex offenders and the requirements of the APB. Having regard to the narrow issue which the Court is called upon to determine in this case, much of this evidence was irrelevant and does not assist the determination of the proceeding.

There were a number of other affidavits filed by the Secretary to which I need not refer. Some of them raised issues concerning events which are alleged to have occurred in a shop in Ballarat involving Mr Fletcher in respect of which he filed an answering affidavit. In the total context of the case the issues raised by these affidavits are also of very peripheral relevance. They need not be considered further.

Apart from the affidavit just referred to no affidavit was filed by Mr Fletcher relevant to whether his ESO should be continued. Although he has consistently maintained for some time that although he will continue to believe that the law is wrong to prevent him from acting on his religious beliefs, he would not break the law by offending again, he proffered no evidence to this effect himself. Nor was any evidence put before the Court from the Church of Antioch, its officers or anyone else to suggest that he would not re-offend if unsupervised. His case really depended on the Secretary failing to establish the required criterion to the requisite standard.

Non-psychiatric Medical Opinion

A review of Mr Fletcher’s physical condition in December 1996 reported that he suffered from Ehlers-Danlos Syndrome, paroxysmal atrial tachycardia and severely restricted vision in his left eye. A report by a prison doctor Dr Eugenie Tuck of 10 December 1996 referred to Mr Fletcher having been admitted to the Pentridge prison hospital for psychiatric assessment and being for some period in September 1996 a forensic inpatient at the then Mont Park Hospital.

On 25 August 2008, Mr Fletcher was examined by Associate Professor Boyd J G Strauss, Director of Clinical Nutrition and Metabolism, at Monash Medical Centre. The purpose of this examination was to assess Mr Fletcher’s nutritional state and advise as to the potential reversibility of any deficits which were found due to his self-imposed limitations on his food intake. He said that Mr Fletcher told him that he had been on a hunger strike, consuming a restricted diet, for 2½ years in protest against his legal status. He said he consumed only milk and fruit juice.

After performing appropriate tests, Associate Professor Strauss proffered the opinion that Mr Fletcher’s nutritional problems were significant and were affecting his health. He had sarcopaenia, reduced bone density, vitamin D deficiency and iron deficiency anaemia. He thought that Mr Fletcher’s nutritional problems were reversible if he began taking appropriate food but there was some doubt about that with respect to his bone density. He thought that, if untreated, Mr Fletcher would develop further nutritional impairment over a period of weeks to months.

Mr Anthony J H Hall, an ophthalmic surgeon, examined Mr Fletcher on 13 March 2009. He confirmed that Mr Fletcher had bilateral severe glaucoma, such that his corrected visual acuity is less than 6/60 in both eyes. He found evidence of old bilateral glaucoma surgery and noted the presence of bilateral severe glaucomatous optic neuropathy. He considered that he had progressive visual loss which would continue.

Although it is unclear as to what Mr Fletcher’s eating habits are currently, I was able to observe him during the hearing in January this year and again on 21 April. His appearance on each occasion was similar. He appeared to be very thin and dishevelled, with an unkempt, long grey beard and similar long grey hair. He walked with a cane in the manner of one who is either totally blind or severely visually impaired.

The arguments of counsel

The Secretary’s primary position with respect to this proceeding was that it should be decided pursuant to the new Act. Accordingly, the submissions of her counsel addressed the issues which would have been appropriate had the new Act applied. He relied upon the High Court decision of Fardon v Attorney-General for the State of Queensland,[39] but that case concerned the constitutional validity of Queensland legislation which resembled the new Act. It was not concerned with the criterion which this Court must consider under the old Act.
[39](2004) 223 CLR 575.

Of course, because the trial of this proceeding commenced before Cummins J, whilst the old Act was in force, the Secretary’s case, as then made, is applicable now to the determination of the proceeding. That case was based largely upon the opinions of Assessor One, expressed in her various assessments reports compiled in accordance with the old Act. The Secretary’s case was that the Court should accept Assessor One’s opinions and find the relevant criterion in s 23(1) of the old Act established.

The case made by Mr Fletcher is in a slightly different position. His counsel, although originally agreeing that the new Act applied, changed his position at the beginning of the oral hearing and argued, from that point onwards, that the old Act applied. In this context, he pointed out that the onus of proof of the likelihood of re‑offending was on the Secretary. He referred to RJE v Secretary to the Department of Justice[40] where Maxwell P and Weinberg JA spoke of the standard of proof in the following terms:
“Plainly enough, Parliament’s use of the phrase “high degree of probability” requires the judge before making an ESO to feel a high degree of satisfaction that the Secretary has proved “the existence of the likelihood” referred to in s 11(1).” – Vice s 23(1).
Their Honours then referred to the famous statement of Dixon J in Briginshaw v Briginshaw,[41] applying it to the gravity of the consequences under the old Act which flowed from an affirmative finding of a likelihood of re-offending.
[40][2008] VSCA 265.
[41](1938) 60 CLR 336.

Senior Counsel submitted that the prediction of the risk of recidivism is difficult. It is only, at best, an educated or informed guess. He referred to TSL v Secretary to the Department of Justice[42] to the effect that an ESO should be reserved for offenders who are a serious or high risk of re-offending.
[42](2006) 14 VR 109 per Callaway JA at [12].

Mr Fletcher’s counsel also raised issues concerning the way in which the ESO had been administered in his case. But these submissions are irrelevant. The issue before this Court is not concerned with the application of the ESO, but only as to whether it should be continued.

Finally, Senior Counsel for Mr Fletcher submitted that the fact that only three years of the ten year term which he served as a result of his pleas of guilty before Harper J related to sex offences against the two 15 year old female victims is significant in evaluating his criminality generally. He submitted that he had no other prior convictions for sex offences – a submission which depends upon what constitutes a ‘sex offence”. The submission has some force with respect to Mr Fletcher’s prior convictions for running a brothel and living off the earnings of a prostitute but perhaps less, in this case, with respect to Mr Fletcher’s conviction for false imprisonment.

Conclusion

Section 23(1) of the old Act requires this Court to revoke Mr Fletcher’s ESO unless it is satisfied, to a high degree of probability, that he is likely to commit a relevant offence in the community if not subject to that ESO. On the whole of the evidence I am satisfied to the requisite standard that Mr Fletcher is likely to commit a relevant offence if unsupervised. The vast bulk of that evidence, aside from the conclusions reached by Assessor One in her statutory assessments, and perhaps those of Professor Ogloff referred to in his reports, was uncontested. I accept Assessor One’s conclusion that Mr Fletcher presents a high risk of relevant re-offending, even if her application of the actuarial prediction instrument, Static-99, produced a result on that measure which might have been to some extent exaggerated. There was ample other evidence to support her ultimate conclusion, and the general opinion of the other medical experts was that the use of actuarial assessment instruments in the case of someone as unusual as Mr Fletcher is probably of little value.

Mr Fletcher’s original offending was degrading and humiliating to his two young female victims. It was properly described by Harper J as putting them in grave danger of very severe psychological, moral and physical harm. His persistent denial of having harmed them at all demonstrates a profound lack of insight into his criminal behaviour. This is particularly so as it would appear that, despite having spent 10 years in gaol and some years since in virtual, if not actual, custody, his views and attitudes on sexual activity between adults and young people under the age of consent appear not to have changed. Any restraint on future offending which might have been imposed upon an offender by self-realisation of the harm he has caused and the harm he could potentially cause again if he re-offended is totally lacking in Mr Fletcher’s case. He has demonstrated no remorse or anything in the nature of contrition. Even if he accepts, reluctantly, that his activities were illegal, he maintains his innocence in his own eyes and, he says, in the eyes of his religion.

The generally agreed psychiatric diagnosis of Mr Fletcher as having a narcissistic personality with antisocial traits leads one to the conclusion that there are no protective mechanisms other than an ESO available to prevent his offending again. If, as Dr Glaser suggested, he has a paraphilia or a persistent deviant sexual arousal or has a tendency to psychopathy, one’s concerns are heightened.

Undoubtedly, Mr Fletcher’s vision problems, his Ehlers-Danlos Syndrome and his advancing age, as well as such permanent damage as he has suffered as a result of his voluntary food refusal since his ESO was imposed, all diminish his capacity for offending. He has virtually no other restraints, and the extent to which these physical disabilities would inhibit his offending if he were not restrained cannot be reliably predicted. If he began taking proper food he could certainly reverse some of his physical deficits, even if his blindness were still a severe disability.

If unaccompanied he could certainly continue to attend situations where he would come into contact with young people, particularly if he continued to attend the Church of Antioch, where he is apparently regarded, by some of its adherents at least, as a wise and charismatic counsellor. The Ghana letters are cause for great concern. In those letters, as already noted, Mr Fletcher propounds religious theories concerning the sexual education of teenage children which most people would regard as obscene and the law regards as criminal. Although his actually going to Ghana and putting his religious theories into practice might be disregarded as mere velleities, unlikely to be accomplished, his lack of any internal controls means that, should an opportunity present itself, he would be unlikely to resist the urge to act in accordance with those theories, wherever he might be. This would be particularly so if he thought he would not be detected or, if detected, would be able to exert sufficient influence on victims as to protect himself from any legal consequences.

Mr Fletcher has persistently claimed that his religion permits, perhaps even encourages, sexual activity between adults and young people under the age of consent. He says that he now understands the law on this subject and will obey it. But no appropriate internal strategy for avoiding re-offending has ever been suggested by him. His refusal or incapacity to engage meaningfully in any sex offender programme or other treatment such as that attempted by Mr Teuma, or take any other realistic steps to confront his offending, means that he has no strategy for ensuring that if appropriate circumstances present themselves, he will not take advantage of the situation. His ESO should not be revoked, at least not yet.

However, the fact that the Court will not revoke Mr Fletcher’s ESO does not mean that he should continue to be subjected to the regime of restraint and isolation to which he has been subject for almost four years since being released from gaol. As has already been noted, because, under the old Act, the Court played no part in fixing the conditions imposed upon an offender subject to an ESO, it cannot now alter those conditions. They are fixed by s 15 of the old Act and by the instructions and directions given to an offender subject to an ESO by the APB pursuant to s 16 of that Act.

One of the purposes of the conditions imposed on an ESO as declared by s 15(2)(b) of the Act is to promote the rehabilitation, and the care and treatment, of the offender. That the APB must exercise its powers of instructing and directing a person subject to an ESO to the same end is a necessary implication from the fact that one of the conditions imposed on an ESO by the statute, that referred to in s 15(3)(h), specifically requires the offender to obey the instructions and directions of the APB. If the ESO is to achieve any part of this purpose in Mr Fletcher’s case, the instructions and directions currently controlling his activities must be moderated. They should be amended, perhaps gradually, to permit him more freedom of movement and freedom of association whilst still under supervision. More effort should be put into finding suitable accommodation for him in a less remote location than Ararat. For his part, Mr Fletcher must cooperate with his supervisors to enable them to become increasingly confident that in future he will carry out his stated intention not to break the law. It should be the aim both of the APB and Mr Fletcher that by the time his ESO expires in June next year, there will be no need for any application to be made for any further restraint on his liberty. This possibility should not be dismissed.

The order of the Court will be that the extended supervision order made in respect of Robin Angus Fletcher on 29 May 2006 pursuant to s 11 of the Serious Sex Offenders Monitoring Act 2005 not be revoked but continue, according to its terms, until its expiry on 12 June 2011.

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[2010] VSC 170

30 April 2010