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Judgment handed down in Secretary to the Department of Justice and Regulation v Fletcher

10 March 2017

The Court of Appeal (President Maxwell, Justice Redlich and Justice Beach) today dismissed an appeal by the Secretary against a decision of Justice Priest (sitting in the Trial division) revoking the supervision order imposed on Robin Fletcher under the Serious Sex Offenders (Detention and Supervision) Act 2009.

Mr Fletcher was convicted in 1998 of sexual offending against two girls aged 15. He was sentenced to ten years’ imprisonment, with a non-parole period of eight years. On his release from prison in June 2006, Mr Fletcher was made the subject of a supervision order under the Act. That order has been in force continuously until now.

The power to make a supervision order is enlivened if, and only if, the Court concludes that there is an ‘unacceptable risk’ of the offender committing a relevant offence if an order is not made. The legislature has determined that the existence of unacceptable risk may justify an order for detention and/or supervision notwithstanding that the offender has already served the sentence imposed.

In this instance, the judge was not persuaded that Mr Fletcher posed an unacceptable risk. He concluded that it was ‘far more probable than not’ that Mr Fletcher would not offend again. His Honour said:

Quite apart from the opinions of Dr Owen and Professor Ogloff, that conclusion is supported by a variety of other factors, including [Mr Fletcher]’s age, physical infirmity and lack of eyesight. Further, although his offending two decades ago was abhorrent, it needs to be remembered that [Mr Fletcher] has been convicted of relevant offending only once in his life, in peculiar circumstances which are unlikely to be replicated. Moreover, [Mr Fletcher] is intelligent and, notwithstanding that he may still hold aberrant beliefs, he has the cognitive capacity to desist from future offending. There is little doubt, in my view, that ten years’ imprisonment, together with a further decade of supervision in conditions severely curtailing his freedom, has had a strongly deterrent effect upon him.

These findings were not challenged on the appeal. The Secretary nevertheless contended that his Honour was ‘plainly wrong’ in reaching the conclusion that there was not an unacceptable risk. The Court rejected this argument, finding that it was well open to the judge, on the evidence before him, to reach the conclusion which he did.

NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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