Attorney-General for the State of Queensland v. Buckby

[2009] QSC 146

[2009] QSC 146

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MULLINS J

No 11102 of 2006

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND	Applicant
and
DESMOND GEORGE BUCKBY	Respondent

BRISBANE

..DATE 09/06/2009

ORDER

HER HONOUR:  This is an application for the annual review of a continuing detention order made against the respondent by her Honour White J on 7 December 2007.

The respondent is 61 years old.  He is a Vietnam veteran.  He

has no family or community support.  He participated in the

hearing of this application by telephone from the Townsville

Correctional Centre.  He declined to have any legal

assistance.  When the hearing commenced, I gave him the

opportunity of seeking legal assistance.  He did not wish to

take that opportunity.

The Crown has previously provided the respondent with the

psychiatric reports from Professor James and Dr Harden that

were filed in this Court on 28 April 2009.  Both Dr Harden and

Professor James were present and gave short supplementary

evidence.  The respondent did not place any evidence before

the Court.  He did make many statements during the course of

the hearing.  These statements echoed the observations that

had been made of him by Professor James and Dr Harden in their

reports.  I will refer to those observations after giving a

brief summary of the respondent's criminal history.

In Queensland, he was convicted in 1990 of unlawful and

indecent dealing with a child under the age of 12 years and

sentenced to 12 months imprisonment.  In 1995, he was dealt

with in the District Court for a series of sexual offences,

the most serious of which was carnal knowledge with

circumstances of aggravation that was committed in the latter

part of 1993.  He was sentenced to 10 years imprisonment for

that offence and for shorter periods of imprisonment for the

concurrent offences.  His appeal against the convictions

was dismissed in 1996. The 10 year sentence for the sodomy was

substituted with one of seven years.

Those offences which involved victims ranging from nine years

of age to 13 years of age occurred as a result of the

respondent developing a relationship of trust and spending considerable time with the parents of the victims.  In relation to the sodomy conviction, there was an administering of a sleeping tablet in a drink prior to the commission of the offence.

The respondent was released from prison.  He was charged with

offences that were committed in May 2003.  These were the

offences for which he was dealt with in the District Court in

July 2004.  The victims were 11 years and eight years old.

The respondent had befriended their parents whilst staying at

a caravan park.  The victims obtained permission from their

parents to spend the night in the respondent's caravan.

He was convicted of one charge of indecent treatment of

children under the age of 16 years with a circumstance of

aggravation.  He gave the children tablets telling them that

they were lollies.  The blood tests of the victims showed they

had low levels of Temazepam.  He was therefore convicted of

one count of attempt to administer drug for purpose of a

sexual act and one count of administer drug for the purpose of

sexual act.  Both victims reported that they fell asleep and

one reported that she woke up during the night and felt a

finger on her vagina.  This resulted in the charge of indecent

treatment of children under the age of 16 years with

circumstance of aggravation.  The respondent pleaded guilty to

those charges.

It was at the conclusion of the periods of imprisonment for

those offences that the respondent first came before the Court

on an application by the Attorney-General under the Dangerous

Prisoners (Sexual Offenders) Act 2003 (the Act).  A

supervision order was made in this Court that resulted in the respondent's release from custody on 14 May 2007.  One of the conditions of that supervision order was that the respondent not have any supervised or unsupervised contact with children under 16 years of age except with prior written approval of an

authorised corrective services officer.

The respondent was living in a block of units.  Some children

moved in nearby.  The respondent befriended the father of the

five children.  The corrective services officer who was

supervising the respondent gave him a warning about

fraternising with the children.  A surprise visit took place

on 3 October 2007.  The respondent was sitting on the couch in

his home with five children with the youngest aged six wearing

a bikini.  He was then taken into custody.

What was of concern about his conduct was that it had the

hallmarks of the grooming of the children that was present in

the offending conduct for which he had been dealt with in 1995

and 2004.  He was breached for the lack of compliance with the

supervision order.  He was brought before the Court to show

cause as to why the supervision order should continue.

That hearing was before her Honour White J.  Her Honour had

before her psychiatric reports that were obtained after the

respondent's return to custody.  They were the reports from

Professor James and Professor Nurcombe.

On the basis of those reports and the other evidence before

her Honour, her Honour concluded that the respondent had not

discharged the onus imposed upon him by section 22(2) of the

Act and her Honour rescinded the supervision order that had

been made by the Court in April 2007 and ordered that the

respondent be detained in custody under a continuing detention

order.

Since the respondent has been in custody, he has been dealt

with for the breach of the supervision order.  That was before

the Magistrates Court in Townsville in January 2008.  He was

sentenced to imprisonment for a term of 10 months for the

offence of without reasonable excuse contravene requirement of

a supervision order.  With taking of the presentence custody

into account, he was given a fixed parole release date of 29

April 2008.  That no doubt explains why the application for

the annual review was filed on 28 April 2009.

Whilst in custody, under the continuing detention order, the

respondent has undergone the Getting Started Preparatory

Program.  This is a program designed for preparing a person

for a sexual offending treatment program.  The difficulty that the respondent has had in undertaking any programs or treatment whilst in prison, both for the sentences he has served in respect of the offences for which he has been convicted and whilst being on remand and under the continuing detention order, is that he strongly denies the offending conduct.

Although he pleaded guilty to most of the offences of which he

has been convicted for sexual misbehaviour, he is firm in his

denials that he in fact committed sexual offences.  It is this

denial of offending that has caused the psychiatric opinion to

be against Mr Buckby in evaluating his risk of re-offending.

During the many statements that the respondent made during the

hearing today, he maintained his denial of sexual offending.

Dr Harden referred to it as "minimisations" and

"rationalisations".  They are good descriptions of the

approach of Mr Buckby to his offending.  He minimises what he

has done to child victims by comparing his touching to what

rapists do to children or what other offenders do by way of

torturing victims.

He takes issue with the description of his offending as sexual

because he emphasises that what he does is take photographs or

looks.  The statements that he made during the course of the

hearing today merely confirmed the opinions that have been

expressed by Dr Harden and Dr James in their reports that were

prepared for the hearing today.

Dr Harden interviewed the respondent in Townsville on 7

November 2008 for two hours 15 minutes.  By that stage, the

respondent had done the Getting Started Preparatory Program.

He refused to do the High Intensity Sexual Offending Program.

When Dr Harden gave evidence today, he was able to supplement

his written report because subsequent to doing that report, he

has seen the results of the preparatory program. He stated

that he was most impressed with the extent to which the

facilitators of that program had been able to engage with the

respondent and get some limited insight from him into his

offending.  The fact that there was some benefit to the

respondent in his undertaking the Getting Started Preparatory

Program is also reflected by the recommendation of the

facilitators of the Getting Started Preparatory Program that

Mr Buckby participate in the High Intensity Sexual Offending

Program to build on the limited gains that he had made.

Unfortunately, Mr Buckby made it absolutely clear in the

course of the hearing today that he has no intention of

undertaking the High Intensity Sexual Offending Program.  It

is a shame that Mr Buckby will not endeavour to do something

further to address his risk of re-offending.  Dr Harden, in

his report, emphasised the lack of insight that the respondent

displayed to Dr Harden about the respondent's own

psychological functioning with regard to his prior sexual

offending or even his functioning at the time that he was

interviewed.  The level of denial was such that Dr Harden

could not explore the understanding that the respondent had of

himself further.

The application by Dr harden of the formal assessment

instruments resulted in the respondent being in the highest risk category in terms of recidivism rates.  Dr Harden recommended that the respondent remain in detention.  He also recommended that he complete the High Intensity Sexual Offending Program.  Dr Harden did not change his conclusion in the course of giving evidence today, but I will add that there was nothing that Mr Buckby said that gave any optimism for  a change in Opinion, in my view, in the short-term.

Professor James interviewed the respondent on 28 October 2008.

Professor James had the advantage of having seen the

respondent on previous occasions.  He did note that the

respondent was more amicable when he saw him on 28 October

2008, but described the respondent's lack of insight as

leading Professor James to "considerable therapeutic

pessimism". Professor James considers the respondent to be

incapable of learning either from experience or as a result of

education.

If he were released, then Professor James considers it is

highly likely that his offending behaviour would be similar to

that which occurred or which was in the process of occurring

when he was grooming children while on the supervision order

in September and October 2007.

During the hearing today Professor James made the observation

that although the respondent complains that he cannot get

through to us, referring to the Court, the lawyers and the

psychiatrists, Professor James said that the psychiatrists and

the authorities have great difficulty in getting through to

the respondent.  Professor considers that what any treatment

program for the respondent has to start with is building up a working relationship with the respondent so that meaningful counselling or therapy can then be engaged in with the respondent.  Professor James considers that any such therapeutic or counselling program has to be undertaken whilst the respondent continues in custody.

I raised for consideration of the Corrective Services

Department whether, in preparing a future management plan for

the respondent, some consideration might be given to

an individual counselling program within the prison system as

a bridge to doing the High Intensity Sexual Offending program

or even, as an alternative, if that is feasible.  Obviously

that will depend on input from those who are experienced in

dealing with sexual offenders like the respondent, who

maintain such strong denials about the characterisation of

their offending conduct as sexual offending.

For the purpose of this review hearing I have had the benefit

of the psychiatric reports to which I have made reference from

Professor James and Dr Harden and the updated material from

the Corrective Services file that has been provided in the

further affidavits of Mr Harrison.  The evidence before me,

particularly that from Professor James and Dr Harden, is

acceptable and cogent and satisfies me to the high degree of

probability that is required under the Act that the

respondent's high risk of sexual re-offending is an

unacceptable risk under the Act.

The paramount consideration in dealing with this review

application is the need to ensure adequate protection of the

community.  I am not satisfied the respondent's state of

denial of his prior sexual offending makes him suitable for a

supervision order.  I am not satisfied that at this stage, in

the light of the psychiatric evidence, that appropriate

conditions can be formulated for a supervision order that will

address the need to ensure the adequate protection of the

community.

During the course of the hearing the respondent made the

statement that what he wanted to do was to get away from

people.  Unfortunately, because of his history and his

predilection for making friends with parents who have

children, he would need close supervision, if released from

custody.  The psychiatric evidence shows that the respondent does not have the skills that enable him to understand and comply with the types of conditions that would be needed to ensure adequate protection of the community from him.

I therefore consider that the appropriate outcome of this

application is to affirm the decision made by her Honour

White J on 7 December 2007 that the respondent is a serious

danger to the community in the absence of an order pursuant to

Division 3 of Part 2 of the Act and to order that the

respondent continue to be subject to the continuing detention

order made by White J on 7 December 2007.

I therefore make an order in terms of the amended draft,

initialled by me and placed with the file.

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