Attorney-General for the State of Queensland v Brennan
[2022] QSC 249
•3 November 2022
SUPREME COURT OF QUEENSLAND
CITATION:
Attorney-General for the State of Queensland v Brennan [2022] QSC 249
PARTIES:
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
BRADLEY WAYNE BRENNAN(respondent)
FILE NO/S:
BS No 8933 of 2021
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
Orders made on 3 November 2022.
Reasons delivered on 18 November 2022DELIVERED AT:
Brisbane
HEARING DATE:
3 November 2022
JUDGE:
Davis J
ORDER:
The Court, being satisfied to the requisite standard that the respondent has contravened requirements of the supervision order made by Ryan J on 18 January 2022, orders that:
1. The respondent be released from custody before 10.00 am on Friday, 4 November 2022 and continue to be subject to the supervision order.
CATCHWORDS:
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY - where the respondent was the subject of a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) on 18 January 2022 - where a condition of the supervision order was to comply with reasonable directions of a Corrective Services officer - where a direction was given that the respondent must obtain permission before accessing the internet - where the respondent was in position of unauthorised devices - where the respondent accessed the internet - where the breach of the supervision order was admitted - whether the supervision order ought to be rescinded - whether the adequate protection of the community can, despite the contravention, be ensured by release of the respondent on supervision
Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 20, s 22
Kynuna v Attorney-General (Qld) [2016] QCA 172, followed
COUNSEL:
S Richards for the applicant
T Morgans for the respondent
SOLICITORS:
GR Cooper, Crown Solicitor for the applicant
Legal Aid Queensland for the respondent
Bradley Wayne Brennan is the subject of a supervision order made by Ryan J on 18 January 2022 pursuant to the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA). The Attorney-General alleges that Mr Brennan contravened the order and she seeks further orders pursuant to s 22 of the DPSOA.
On 3 November 2022, I made the following order:
“The Court, being satisfied to the requisite standard that the respondent has contravened requirements of the supervision order made by Ryan J on 18 January 2022, orders that:
1.The respondent be released from custody before 10.00 am on Friday, 4 November 2022 and continue to be subject to the supervision order”
These are my reasons for making that order.
Mr Brennan was born on 21 May 1979 and is 43 years of age.
On 12 December 2016, Mr Brennan pleaded guilty to one count of rape, 11 counts of indecent treatment of children under 16, three counts of sexual assault and one count of common assault arising from violent assaults against women and girls.
On 18 January 2022, Ryan J found that Mr Brennan was a serious danger to the community in the absence of an order made under Division 3 of the DPSOA.[1] Her Honour ordered that Mr Brennan be released pursuant to a supervision order.[2]
[1]Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(1) and (2).
[2]Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(5)(b).
The terms of the supervision order are, relevantly:
“6.A corrective services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a corrective services officer gives you about:
(i)where you are allowed to live; and
(ii)rehabilitation, care or treatment programs; and
(iii)using drugs and alcohol;
(iv)who you may and may not have contact with; and
(v)anything else, expect for instructions that mean you will break the rules in this supervision order.
A ‘reasonable direction’ is an instruction about what you must do, or what you must not do, that is reasonable in that situation.
If you are not sure about a direction, you can ask a corrective services officer for more information, or talk to your lawyer about it. …
22.You must get written permission from a corrective services officer before you are allowed to use a computer, phone or other device to access the internet.
23.You must give a corrective services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of when you start using the computer, phone or other device. You must let a corrective services officer look at the computer, phone or other device and everything on it.
24.You must give a corrective services officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things.”
The Attorney-General alleged that Mr Brennan had breached the supervision order. On 30 June 2022, a warrant issued for Mr Brennan’s arrest.[3] On 4 July 2022, he was brought before the court and remanded in custody.[4]
[3]Dangerous Prisoners (Sexual Offenders) Act 2003, s 20.
[4]Dangerous Prisoners (Sexual Offenders) Act 2003, s 22.
The contravention alleged against Mr Brennan is:
“The respondent is subject to a 10 year supervision made under the Act on 18 January 2022.
On 19 January 2022, the respondent acknowledged the requirements of his supervision order and signed reasonable directions to provide a list of computers, telephones or other devices with internet capability in his possession, not access social media without approval and comply with Wacol Precinct Rules including to not access the internet at any time on the Wacol Precinct.
On 17 February 2022, the respondent signed a reasonable direction approving him to purchase a basic mobile device with no internet connectivity and only use one phone and one sim card.
Information was received by Queensland Corrective Services (‘QCS’) in May 2022 indicating the respondent may be in possession of an undisclosed internet capable device.
On 29 June 2022, Queensland Police Service (‘police’) officers executed a warrant under the Police Powers and Responsibilities Act 2000 and conducted a search of the respondent’s accommodation. During the search, police officers located the following devices (‘the devices’):
•an iPad tablet;
•a Dell laptop;
•a pocket Wi-Fi device; and
•a second Wi-Fi device which included a sim card and password and provided the respondent with unlimited internet.
The respondent admitted to accessing a Facebook account to contact family.
The respondent did not seek nor was given approval to possess any of the devices at any time and was not given approval to access Facebook or any other social media websites at any time.”
Mr Brennan was charged criminally with breaching the supervision order. He pleaded guilty in the Richlands Magistrates Court on 30 June 2022 and was convicted and fined.
The medical evidence
Dr Luke Hatzipetrou is a psychologist who is treating Mr Brennan. He observed Mr Brennan’s intellectual and other impairment. This impairment and a lack of insight and judgment were opined by Dr Hatzipetrou as “likely to remain barriers in the treatment process …”. Dr Hatzipetrou opined, as to risk:
“Coupled with his role as a victim, Mr Brennan remains at moderate risk of reoffending whilst under the conditions of the DPSOA. The recent transgression reflects Mr Brennan’s level of cunningness and propensity to pursue his own desired goals, despite knowledge these actions were wrong. When released, Mr Brennan will require high levels of disability support and engagement in a structured program that involves skill development, activity and continued involvement in addressing the offence pathway.”
Dr Brown is a psychiatrist who had examined Mr Brennan previously. She examined him after he had been returned to custody and provided a report. She observed that Mr Brennan had a full scale IQ of 71, exhibited anxious avoidant, dependent and antisocial traits and possible autistic spectrum disorder. She opined “… that Mr Brennan’s unmodified risk of sexual offending remains moderate to high”, although considered that would reduce over time with treatment from Dr Hatzipetrou. She thought it significant that there was no evidence that Mr Brennan utilised the electronic devices to engage in sexual related material. She thought that if Mr Brennan was to be released back on the supervision order, that order “… would adequately reduce the risk of sexual offending to a below moderate and manageable level”.
Dr McVie is also a psychiatrist. She also had previously examined Mr Brennan and examined him again after the breach. Her diagnosis was one of borderline intellectual functioning and antisocial personality traits. She opined that Mr Brennan presents “… at least a moderate to high risk of re-offending sexually if released from custody without a supervision order”. While she observed that Mr Brennan had some difficulties in complying with the supervision order, she thought his risk of reoffending had been contained by the conditions of the order and that the breaches had been quickly detected and acted upon. Like Dr Brown, Dr McVie thought that Dr Hatzipetrou’s treatment was beneficial and ought to continue.
Statutory context
Section 22 of the DPSOA provides:
“22 Court may make further order
(1)The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order).
(2)Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must—
(a) if the existing order is a supervision order, rescind it and make a continuing detention order; or
(b) 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 period stated in the order.
(3)For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following—
(a) act on any evidence before it or that was before the court when the existing order was made;
(b) make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order—
(i)in the nature of a risk assessment order, subject to the restriction under section 8(2); or
(ii)for the revision of a report about the released prisoner produced under section 8A;
(c) consider any further report or revised report in the nature of a report of a type mentioned in section 8A.
(4)To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a).
(5)If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies.
(6)For applying section 11 to the preparation of the report—
(a) section 11(2) applies with the necessary changes; and
(b) section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist.
(7)If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court—
(a) must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and
(b) may otherwise amend the existing order in a way the court considers appropriate—
(i)to ensure adequate protection of the community; or
(ii)for the prisoner’s rehabilitation or care or treatment.
(8)The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”
Once the contravention is proved, the onus falls upon Mr Brennan, pursuant to s 22(7), to satisfy the court that, notwithstanding the contravention, the adequate protection of the community can be ensured by his release back on supervision. The question is not whether Mr Brennan will comply with the orders. It is well-established that the notion of “the adequate protection of the community” encompasses protection from the commission by Mr Brennan of serious sexual offences as that term is defined in the DPSOA.[5]
[5]Kynuna v Attorney-General (Qld) [2016] QCA 172.
Position of the respective parties
The Attorney-General urges a finding that the breach has been proved. She accepts that on the material before the court, Mr Brennan may have discharged the onus upon him under s 22(7).
Mr Brennan admits the contravention but, in reliance upon the medical evidence, submits that he has discharged the onus cast upon him and that he ought to be released back on supervision.
No party sought a variation of the supervision order and the medical evidence does not suggest that the supervision order ought to be varied.
Consideration
I find the contravention, as particularised, proved.
The contravention did not involve the commission of a sexual offence, let alone a serious sexual offence as defined by the DPSOA.
Mr Brennan’s compliance with the supervision order may be hampered by his intellectual limitations. However, the contravention does not indicate an increase in the relevant risk.
I found that the adequate protection of the community against the commission by Mr Brennan of a serious sexual offence can be ensured by his release on the supervision order in the current terms.
For those reasons, I made the order which I did.