Attorney-General for the State of Queensland v Bickle

[2008] QSC 142

[2008] QSC 142

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

DE JERSEY CJ

No 846 of 2006

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND	Applicant
and
STEVEN SHANE BICKLE	Respondent

BRISBANE

..DATE 04/07/2008

ORDER

THE CHIEF JUSTICE:  On the 2nd of June 2006 Justice Moynihan

found that the respondent would be a serious danger to the

community in the absence of an order under division 3 of the

Dangerous Prisoners (Sexual Offenders) Act 2003.

His Honour released the respondent under a 20 year supervision

order.  Clause (U) of the order provides that the respondent

must abstain from illicit drugs for the duration of the order.

The psychiatric evidence before his Honour came from Dr Grant

and Professor Nurcombe.  In Dr Nurcombe's report of the 27th

of March 2006 he said that "a reversion to alcohol or

substance abuse would increase the likelihood of reoffending".

In Dr Grant's report of 20th March 2006 he said as follows:

"Whilst drug and alcohol abuse may not have played a prominent

part in Mr Bickle's previous offending behaviour, I believe it

would have a tendency to reduce his controls and make

offending behaviour more likely if he was to resume abusing

substances.  Therapy would therefore be needed to monitor his

drug and alcohol intake."

The evidence before me establishes that on the 24th of June

2008 the respondent gave a urine sample to his parole officer.

It subsequently tested positive to the presence of

cannabinoids.

The respondent's explanation for that, as originally put before me, comprised assertions set out in the outline of argument

presented by his counsel.  When I drew attention to the

inadequacy of that Mr Allen, who appeared for the respondent,

called his client to give sworn evidence. 

In his evidence before me the respondent said that at the end

of last year one of his children gave him a cannabis

cigarette.  He secreted that cigarette in a bush in his yard

outside his place of residence.  One or two days before the

urine testing, while the respondent was in the course of

reading his recently deceased father's memoirs, he recovered

the cannabis and smoked some of it.  He said he had one or two

puffs, then stopped because he did not like the sensation.  He

did not say that he stopped because he recognised that he was

thereby breaching one of the conditions of his supervision

order.

The respondent thereby breached a condition which the

psychiatrists supported, presumably, because they considered

it necessary to minimise the risk of the respondent's

reoffending.

It is significant that the respondent accepted the cannabis in

the first place, that he retained it for six months,

inferentially contemplated his smoking it at some stage, and

that he did smoke it outside the house with no-one else

observing.  Also the respondent did not alert his parole

officer to the fact that he had breached the order and thereby

concealed from his parole officer the resultant risk.

Now, it might be regarded as naive to think that a respondent

in that position would make a frank confession to his parole

officer as to what he had done.  On the other hand, these

supervision orders are premised on close adherence to their

terms.  There is a relationship presumably between a

respondent in this position and his parole officer based on

mutual trust, and giving rise to the expectation that if

problems develop they will be brought to light and properly

addressed.

The respondent in his evidence acknowledged the foolishness of

what he did and is plainly remorseful, especially, I surmise,

because of the application which has now been made by the

Attorney-General.

The respondent was arrested under a warrant issued under

section 20 of the Act.  I am satisfied under section 22(1) on

the balance of probabilities that the respondent has

contravened a requirement of the supervision order, that is,

he breached condition (U).

Under section 22(2), unless the respondent satisfies the Court

on the balance of probabilities that the adequate protection

of the community can, despite the contravention, be ensured by

the existing order as amended under subsection (7), the Court

must do either of two things:  it must either rescind the

supervision order and make a continuing detention order, or if

the existing order is an interim supervision order, rescind it

and make an order that the released prisoner be detained in

custody for the stated period.  In this case, of course, we

are dealing with a supervision order as such.

Subsection (3) then provides that for the purpose of deciding

whether to make a continuing detention order the Court may,

under paragraph (b), "make any order necessary to enable

evidence of the kind mentioned in section 13(4) to be brought

before it, including an order in the nature of a risk

assessment order".

The Attorney-General seeks to assemble evidence bearing upon a

risk assessment order and the appointment to that end of

Professor Nurcombe and Dr Scott Harden.

Professor Nurcombe can see the respondent on the 21st of July

2008, Dr Harden can see him on the 1st of August 2008.

Accordingly there should not be much delay involved in

securing the necessary psychiatric assessments.

I would think that Dr Harden would be building on the work

already done by both Professor Nurcombe and Dr Grant.  The

reason why Dr Grant cannot be called in aid is that he has

taken on a position within Queensland Health.

My intention would be that the matter be relisted for the

final hearing as soon as possible after the psychiatric

evidence is available and the respondent has had an

appropriate opportunity to deal with it, but well before

October, which was mentioned here earlier as apparently the

first hearing date at this stage which could be allocated.

Matters like this need to be given expedition within the Court

lists and I am sure that if the parties are ready to proceed

from, say, mid August, that dates can very soon thereafter be

set aside for the hearing, and as necessary special approaches

should be made to the listing manager for that purpose.  If

difficulties are encountered, the matter should be referred

back to the Senior Judge Administrator.

The matter obviously cannot proceed finally until those

reports are available, until they have been considered, until

the respondent has had an opportunity to answer them.

The matter comes before me now, therefore, on an interim basis

under section 21 of the Act.  Subsection (2) again provides

for two alternatives.  I must either, under paragraph (a),

"order that the released prisoner be detained in custody until

the final decision of the Court under section 22" or, under

paragraph (b), "release the prisoner under subsection (4)".

The Attorney-General seeks an order for detention pending the

final determination of this application.

The respondent seeks a continuation of the supervision order

subject to the additional requirements mandated in such a

situation by section 16(1)(da) and (db) which relate to

curfew and monitoring and compliance with directions.

Subsection (4) of section 21 provides as follows:

"The Court may order the release of the released prisoner only

if the prisoner satisfies the Court on the balance of

probabilities that his or her detention in custody pending the

final decision is not justified because exceptional

circumstances exist."

Mr Allen, who appears for the respondent, relied in summary on

these exceptional circumstances or the aggregation of them:

(1) the circumstance that the respondent is the sole, and as

it is put, indispensable carer of his partner

who suffers from diabetes and autonomic neuropathy. She has

suffered from Type 1 diabetes since she was 9 years of age;

and (2) the prospect that the final hearing will lead to a

continuation of the supervision order.

As to the first matter, the partner’s affidavit deals with her

substantial reliance on the respondent, especially in dealing

with unpredictable hypoglycaemic attacks.

As to (2), Mr Allen emphasised the lengthy periods for which

the respondent has abstained from alcohol and drugs, covering

his 13 year period of incarceration and the two years since

his release in 2006, throughout which he has been subjected to

regular and rigorous testing.  Mr Allen referred to previous

cases of Foy and Francis in this context.

It may be considered an exceptional situation that the

respondent is of such substantial assistance to his afflicted

partner in circumstances where she is so reliant upon him.

She is under regular specialist medical care and I expect that

if the respondent is incarcerated other arrangements will

necessarily be made for her substantial care.  It may be noted

that throughout most of her life she has had to rely on

others for such care. 

But whether arguably exceptional

circumstances warrant a respondent's release should be

considered in the context of what led to the supervision order

and the order itself. The condition requiring abstinence from

drugs has always been clear and unequivocal.  It has had

a rational psychiatric basis, relevant to the risk of

reoffending.  The respondent understood that, yet he accepted

and retained the cannabis for about six months, inferentially

in anticipation of using it, and he did use it.  He did not

refrain because of an acknowledgement of the risk identified

by the psychiatrists of which he was aware, but because he did

not like the sensation.  It was a clear and significant breach

of an important prohibition in the supervision order.

The question then is whether the respondent in that context

has established circumstances sufficiently exceptional to

avoid the consequence which would otherwise follow; that is,

detention in the interim until the final determination of the

application.

In my view, he has not.  In other words, in this interim

period, which should amount to weeks, not months, his parner’s

reliance upon him, and any prospect of the ultimate

continuation of the supervision order, should not prevail over

the need for community protection upon which the supervision

order with its detailed regime was and is based.

In a sense, these orders represent compacts between such

prisoners and the community.  Where a significant breach is

plainly established, as here, and where the nature of that

breach suggests a lack of appreciation in the respondent of

the justification for and importance of the condition, the

risk of reoffending while at large in the interim needs to be

considered very carefully.

While the discomfort to the respodent’s parnter is

regrettable, her condition is not, in my view, in the end

sufficiently exceptional to warrant not ordering interim

detention.

There will, therefore, be orders as follows:

(1) pursuant to section 22(3)(b) of the Dangerous Prisoners

(Sexual Offenders) Act 2003 that the respondent undergo

examinations by two psychiatrists, namely Dr Scott Harden and

Professor Barry Nurcombe, who are to prepare independent

reports in accordance with section 11 of the Act;

(2) pursuant to section 21(2)(a) of the Act that the

respondent be detained in custody until the final decision of

the Court under section 22 or until further order of this

Court; and

(3) that the matter be listed for further directions on the

15th of August 2008.

I don't want it to go off into the never never.  Can someone

check for me that that's a week date?  It's a Friday.  Would

that be suitable to both of you?  It seemed to me that that

gave a bit of a lead, but not too much of a lead, beyond the

dates of the examinations.

Can you stress, please, to the psychiatrists that it would be

greatly appreciated if they could produce their reports very

shortly after the examinations?

MS EVANS:  Yes, I will do that, your Honour.

THE CHIEF JUSTICE:  Thank you.

MR EVANS:  Your Honour, could I just make one perhaps more

comment than submission?  It would seem it would be

unfortunate if the publication of the partner’s name caused

her considerable embarrassment given the personal details as

to her health situation in this context-----

THE CHIEF JUSTICE:  Yes.

MR ALLEN:  -----where it really wouldn't advance anything news

worthy.  I'm not suggesting your Honour can make any order in

that respect.

THE CHIEF JUSTICE:  No, well, I will intimate to any media

representatives that my strong preference would be that the

respondent's partner not be named.

Can I have your agreement in that regard, please?  Thank you.

MR ALLEN:  Thank you, your Honour.

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