Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Anthony Lee Faltusz

24 August 2021

Reasons for Decision

The Background:

Mr Anthony Lee Faltusz (“the applicant”) is serving a sentence of imprisonment imposed upon his conviction for murder.

The applicant became eligible to be considered for a parole order on the 23^rd of October 2012.

The applicant appeared before the Parole Board in respect of his application at its hearing on the 6^th of August 2021. On that occasion the applicant was present at the hearing and was invited to provide any information he had in support of his application and made himself available for questioning by the Board.

A pre-parole report prepared on behalf the Board was read to the applicant prior to his appearance at the hearing.

Statutory Criteria

In determining the application, the Board has had regard to the following statutory criteria:-

The Corrections Act 1997, s72, establishes a statutory criteria for determining suitability for parole.

S72 (4) specifically provides as follows:

“In determining whether or not a prisoner should be released on parole, the Board is to take into consideration –

• The likelihood of the prisoner re-offending; and
• The protection of the public; and
• The rehabilitation of the prisoner; and
• Any remarks made by the court in passing sentence; and
• The likelihood of the prisoner complying with the conditions; and
• The circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment; and
• The behaviour of the prisoner while in prison and, if he or she has been in a secure mental health unit, while in that secure mental health unit; and
• The behaviour of the prisoner during any previous release on parole; and
• The behaviour of the prisoner while subject to any order of a court; and
• Any reports tendered to the Board on the social background of the prisoner, the medical, psychological or psychiatric condition of the prisoner or any other matter relating to the prisoner, including in the case of a prisoner who is or has been a forensic patient any report of the Chief Forensic Psychiatrist; and
• The probable circumstances of the prisoner after release from prison; and
• Any statement provided under subsection (2B) by a victim, or, if subsection (2AB) applies, the parent or guardian of the victim, of an offence for which the prisoner has been sentenced to imprisonment; and
• If the prisoner is a sex offender prisoner, any notice or assessment given to the Board pursuant to section 31(6) or (7) concerning the prisoner's participation or non-participation in appropriate treatment; and
• Any other matters that the Board thinks are relevant.”

When considering the application for parole of a sex offender s31(3)(b) of the Act is also relevant:

• “The Director, on giving the sex offender prisoner the opportunity to participate in the appropriate treatment, is to inform the prisoner that…
• Participation, non-participation or unsatisfactory participation will, if the prisoner becomes eligible for parole, be factors taken into consideration by the Board in determining whether the prisoner should be released on parole.”

The High Court, in Power v The Queen (1974) 131 CLR 623 rejected the proposition that the primary purpose of parole is the rehabilitation of the offender, deciding that it is "to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence".

The system of parole does recognise, however, the capacity of people to change and reform, the benefits of supervision, treatment, and program delivery in the community and ultimately the potential this has for the protection of the community in reducing recidivism.

When considering eligibility for parole this purpose must be weighed against the risk each prisoner may pose to members of the community if released to serve the remainder of their sentence amongst them, the ability to remove or mitigate that risk by the imposition of appropriate conditions and understanding the victim’s “voice” and the desire to continue to punish for the criminal wrongdoing.

Consideration

Between the ages of 16 and 17, the applicant attacked three young women on three separate occasions. The first, a 15-year-old girl was randomly stabbed but thankfully received minor injuries.  The applicant inflicted serious injuries on the remaining two victims, and both were left for dead.  Fortunately, one, a then 12-year-old girl, survived.  Tragically, his third victim, died. The attack on these victims was as inexplicable as it was horrific with the Court describing the crimes as displaying a “…. a callous indifference to their [the victim’s] sensibilities and dignity as human beings”.

The applicant’s motives to have acted in this way are not well understood. Two of the victims were unknown to him and the third was a former girlfriend.  The circumstances and gravity of the offences are factors the board must have regard to when considering the suitability of the applicant for parole.  There is no doubt that the circumstances of the applicant’s offending are significantly troubling not only in respect to the unprovoked and escalating nature of the violence he engaged in and the fact that he ultimately took a young lady’s life and permanently scarred another’s, but also because there remains little knowledge or insight into why the applicant acted as he did.

This gap in understanding has frustrated a therapeutic approach to addressing the applicant’s offending behaviour.  Over the years this gap and the risks the applicant presents have been considered by psychiatrists and psychologists.  At the time of his resentencing Underwood J summarised the psychiatric position as

• “In 2000, Dr Sale wrote that "the pattern of [the applicant's] offending cannot help but concern" and "the killing of Miss Humes was a pre-mediated rather than impulsive act". In 2005, in preparation for the re-sentencing hearing, the applicant consulted Dr Reid, a colleague of Dr Sale. The applicant told Dr Reid that he did not have a plan to murder Miss Humes, although he did agree that he took a tomahawk with him when he left home. Dr Reid's report referred to the applicant having, in effect, matured since he had been in prison. Dr Sale and Dr Reid subsequently conferred and expressed the joint opinion that there still is a risk of future violence and/or rape and they were unable to predict what circumstances may give rise to the risk becoming a reality. The joint opinion accepted that since he was sentenced in 1991, the applicant may well have become less impulsive, but added that there was nothing impulsive about the murder of Miss Humes. Finally, the joint opinion advises that a "useful start in reducing the risk of re-offending might be an honest acknowledgement of what happened".

In a 2012 report Dr Evenhuis noted that the applicant’s score on the revised Psychopathy Checklist (PCL-R) did not suggest he was a high risk of recidivism.  He further noted that at the time of the offending the applicant was more impulsive and emotionally reactive than he was at the time he assessed him as “…commonly occur as individuals mature”. Ultimately Dr Evenhuis concluded following his 2012 assessment that:

• “The nature of Mr Faltusz’s offending raises serious concerns about his risk of future violent offending given the evidence of serious personality pathology with respect to empathy deficits and emotional dysregulation. Since this time, he has matured in a number of areas of his personality and he has lived a remarkably pro-social existence within custody. It would appear that, in a conventional sense, Mr Faltusz’s criminogenic needs may be able to be well catered for in the community. He has reasonable family support, he has access to employment, he does not have a significant history of substance abuse and he is willing to participate in ongoing therapy. Testing with the PCL-R indicates that Mr Faltusz is not a good match with the concept of psychopathy. However, the degree to which a young adult who lacks empathy can develop empathy is debatable and the actual factors that motivated (rather than facilitated) Mr Faltusz’s offending remain unclear and over the years he has provided a number of different explanations for his offending. Whilst it would be convenient if his offending was related to a psychological condition (that has now mostly resolved) this would appear to be an unlikely explanation.
• Hence, despite all of the gains that Mr Faltusz has made, in my opinion, he must still be considered to be at least at moderate risk of future violent offending. In some respects, risk assessment remains more of an art than a science and given the unusual circumstances of his offending I am unable to offer a numerical estimate of his risks of re-offending.”

To provide further assistance to the Board in its consideration of the suitability of the applicant for parole over the years, Mr Minehan, psychologist, has provided reports in 2013 and 2021.  Essentially Mr Minehan’s opinion in that period has remained unchanged.  He believes the applicant has a;

• “…very severe antisocial personality disorder and has been assessed in the past as having a high level of psychopathic traits. He displays extreme difficulties with empathy, understanding the emotions of others and having insight into his own emotions and motivations for his behaviour.”

In the context specifically of risk Mr Minehan did not support parole specifically noting the absence of insight into the motivation for the offending and the absence of meaningful therapeutic input as a result.  When recently asked to reconsider the issue of risk in the context of the supervision and monitoring capabilities of parole Mr Minehan advised;

• “… I note the most significant changes are the physical and environmental conditions that may be in place in the event that Mr Faltusz is granted parole. If released he is likely to be subject to high level face-to-face supervision as well as electronic monitoring. These measures represent physical risk management strategies and do not address any of the psychological risk factors and therapeutic targets that have been identified from previous assessments, outside of providing a degree of supervision and ability to establish Mr Faltusz’s location after an event occurs. The degree to which this is a deterrent to Mr Faltusz is unknown. It is my view that it is a matter for the Parole Board to decide if these physical risk management strategies are sufficient to consider granting parole.”

The assessment of risk is, as indicated by Dr Evenhuis, a less than perfect science.  It is certainly true that were the applicant able to point to a specific cause or motive for his conduct  in 1989 and 1990 it may indicate something tangible to treat, contain or nullify, rendering risk to be more of a known quantity.  But this does not allow for the very real possibility that the applicant does not know why he acted as he did.

These crimes were committed when the applicant was 16 and 17 years of age.  He is now just shy of turning 49 years of age. The applicant has been eligible to apply for parole since October 2012.  He has applied for an order on 4 previous occasions and on each occasion that order has been refused.  Overall, the basis for the past refusals has been the absence of an explanation for the applicant’s offending and the consequent failure to address that cause, whatever it may have been, by targeted offence specific therapy. Despite this block the applicant has not sought to change his story or to attempt to fabricate a cause merely to satisfy the Board and enhance his prospects of a parole order.  He has consistently asserted that he has no explanation as to why he acted in the way he did.

During his imprisonment the applicant has made efforts to engage in rehabilitative and educational programs.  He has undertaken the Making Choices, Anger Management, Equips Aggression and Inside Out programs.  He has also engaged in activities and learning opportunities related to sport, IT, breadmaking, occupational health and safety amongst others.

As he points out in his application for parole the applicant has, at times, spent considerable periods operating in trusted positions, often external to the prison environment and at times with little or no supervision.  He has worked as a volunteer with the Tasmanian Fire Service and in that position has at various times been engaged in firefighting, hazard reduction work, renovation works at fire stations, fire spotting and attendance at various fire brigade State competitions.  The applicant has also worked at the Botanical Gardens and Government House gardens, umpired football within the community and worked at the RSPCA shelter.  These episodes have often resulted in the applicant being in the presence of women.

With one exception, the applicant’s behaviour in the prison environment and within the community whilst on section leave has been exemplary.  The notable exception occurred whilst the applicant was working with the RSPCA.  On the 12^th of December 2017 he was involved in a physical altercation with another staff member.  It appears that the issue was dealt with “in house” at the RSPCA and didn’t come to the attention of the prison authorities until 2018. At that time leave was suspended and the applicant was removed from the minimum-security Ron Barwick Prison until the 18^th of August 2018 at which time he was returned.  The applicant had worked at the RSPCA since 2015 and was reportedly a well-liked and respected member of their team. Since January 2019 the applicant has been able to return to utilising leave.  He has attended the Inside Out Program and assisted with the set up and break down required for the Cancer Council’s relay for life, spent time at his home and within the community with his family, and worked at Government House.  This leave was again performed without issue.

There is no history of previous imposition of community supervision or court orders to which the Board could look to consider the likelihood of compliance.  Nevertheless, the fact that the applicant has been able to demonstrate, over a lengthy period, compliance with the rules and regulations of the prison environment, the fact that he has held positions of trust in that environment and indeed has been allowed to access the community to perform work and functions to assist the community with little supervision and without incident reflects that the applicant has the capacity to comply with the conditions of a parole order.

In terms of his future focus the applicant has suitable and supportive accommodation available to him upon release.  He has plans to engage in pro social and productive activity including obtaining employment.  His expectations regarding the frustrations and difficulties he may face when back in the community are realistic. It is noted by the Board that the applicant has the agreement of a forensic psychologist to be engaged in his psychological care and therapy once released.

The Board have received and carefully read the statements provided by two of the applicant’s victims.  Nothing can ameliorate the losses felt by them.  They live with the terrible legacy of harm perpetrated for no known reason on themselves or their loved one.

A consideration for the Board is if there are any prospects for the applicant’s reform. The fact of the absence of an explicable and treatable cause for his past acts does raise concern regarding risk however protective factors exist. The applicant has a pro social and supportive environment to return to.  He has on the whole demonstrated compliance, and reliability whilst serving his sentence.  He has matured from the 16/17-year-old that committed these crimes and his supervision whilst on a parole order will be close and intense.

Because the applicant’s family are a protective factor for him against further offending, his good compliance during his imprisonment, increased maturity and low risk for drug and alcohol issues and that he will be subject to the highest level of physical supervision, Community Corrections have assessed the applicant as suitable for a parole order.  Supervision will include frequent scheduled appointments with the supervising parole officer and attendance at interventions and programs considered necessary.

The capacity of the Board to monitor compliance with the conditions of a parole order have been enhanced recently to include electronic monitoring.  This entails the applicant, whilst on a parole order, wearing an ankle bracelet allowing his movements to be monitored and sounds alerts where those movements place him in or close to an area outside of his parole conditions.

The applicant has spent most of his life incarcerated for his crimes.  At the time of his offending, he was an immature 16 and 17-year-old who appeared to have lacked the capacity for empathy and self-control. The fact that he now has the capacity to control his behaviour to meet society’s expectations has been demonstrated by the compliant way he has served his sentence over the past 32 years.  The same motivation that has led to that compliance will also be in existence in the community. Indeed the applicant has been able to work and perform functions whilst on leave from the prison in the community without issue.  On balancing all matters it is the determination of the Board that the applicant is appropriate for and should be afforded a parole order.

The Board’s determination

Parole is approved

Special conditions applied

• Must be assessed for and comply with a mental health care plan
• Must attend and engage in psychological counselling and must not terminate this engagement without first obtaining a recommendation to do so from the treating psychologist and the permission of the Board
• Must give permission to the treating psychologist to provide regular updates as to the applicant’s ongoing attendance, engagement, and progress with psychological treatment
• Must not leave his place of residence between the hours of 8.00 pm and 6.00 am
• Must not contact directly or indirectly certain named victims
• Must be electronically monitored

Paroled from 2 September 2021 for the term of his natural life.