Attorney-General for the State of Queensland v Buckby

[2007] QSC 200

[2007] QSC 200

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

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

BRISBANE

..DATE 12/04/2007

ORDER

HER HONOUR: This was the hearing of an application by the Attorney-General for a Division 3 order under the Dangerous Prisoners Sexual Offenders Act 2003 (the Act).

The Court is empowered to make Division 3 orders if it is

satisfied that the prisoner is a serious danger to the

community in the absence of a Division 3 order.

Section 13(3) provides that a prisoner is a serious danger to

the community if there is an unacceptable risk that the

prisoner will commit a serious sexual offence (a) if the

prisoner is released from custody or (b) if the prisoner is

released from custody without a supervision order being made.

Subsection 4 of section 13 sets out the factors to which the Court must have regard in determining whether or not the prisoner is a serious danger to the community.  That question is attended by little doubt in this case.

The Court appointed two psychiatrists, who are expert in this

area, Dr Barry Nurcombe and Dr Basil James both of whom are of

the view that all of the factors to which they have had regard

show that the prisoner would be a serious danger to the

community if a Division 3 order were not made.

That view is supported by other medical, psychiatrist and

psychological assessments relating to the prisoner, including

in particular the view of the psychiatrist Dr Josephine Sundin

and psychologists John Granville and Dr Barry Kidd.

There is information indicating that there is a propensity on

the part of the respondent to commit serious sexual offences

in the future, both according to the actuarial scales and also

by the clinical findings of those psychiatrists who examined

him.  There has been a pattern of offending behaviour on the

part of the prisoner which can be seen in his criminal history

which shows repeated sexual offending against children.  There

has been little effort by the prisoner to address the causes

of his offending behaviour, including participation in

rehabilitation programs.  It is true that he has taken part in

various programs, but his denial of the many offences of which

he has been convicted, many of which he pleaded guilty to,

show that he has failed to address the causes of his offending

behaviour.

There is, of course, a real risk therefore that he will commit

another serious sexual offence if released and the members of

the community, particularly children, need to be protected

from that risk.  The risk as expressed by Dr James is of his

sexual offending against children in situations where he

grooms children who are needy or vulnerable so that they have

some degree of trust in him so that he can offend against

them, and it is also necessary to reduce the risk that he

engages in opportunistic sexual offending against children.

There are two types of orders that can be made under Division

3.  The first is a continuing detention order which requires

the person to remain a prisoner.  The second is a supervision

order.  In the choice between those two the question is

whether the protection of the community is adequately ensured.

As the Court of Appeal held in The Attorney-General

(Queensland) v. Francis (2006) QCA 324 at paragraph 39:

"If supervision of the prisoner is apt to ensure adequate
     protection, having regard to the risk to the community
     posed by the prisoner, then an order for supervised
     release should, in principle, be preferred to a
     continuing detention order on the basis that the
     intrusions of the act upon the liberty of the subject are
     exceptional, and the liberty of the subject should be
     constrained to no greater extent than is warranted by the
     statute which authorised such constraint."

There is disagreement amongst the professionals with relevant

clinical experience, that is the psychiatrists, as to that

question in this case.  Fortunately the two psychiatrists

appointed by the Court, Dr Nurcombe and Dr James, agree that

the respondent could respond to treatment.

Dr Nurcombe expressed the view in his evidence given in Court

today that the conditions which have been proposed are

adequate for the protection of the community and if complied

with would completely reduce the risk of his re-offending.

Dr Sundin expressed grave concern that he would comply with

the conditions imposed and recommended that she would prefer

if he remained in custody until he complied with the Sexual

Offenders Treatment Program.  However, I agree with Dr James

that there is no point in his completing that program in

custody if he is just sitting through it in order to be

released and it is unlikely to have any beneficial effect on

him.

Dr James expressed the view that the risk of his re-offending

against children would be very great unless he were under

strict supervision.  He thought that the draft supervision

order which had been provided was strict but not too strict,

not unnecessarily strict, and that the conditions were such as

to reduce the risk of his re-offending and would be likely to

be as effective as any conditions could reasonably be.

However, he also expressed strongly the view that the

respondent must be carefully monitored under that supervision

order and must receive treatment.

It is essential that any supervision order address two main

factors.  The first is to provide conditions which reduce the

opportunity for him to re-offend, and secondly, conditions which provide that he must obtain treatment to reduce his desire to re-offend.  Both of those are necessary conditions of any supervised release.

The conditions which have been drafted by the officers from

the Corrective Services Department are very carefully drawn.

They are onerous and they ensure to the greatest extent that

it is possible to do that they are apt to ensure adequate

protection of the community from the risk posed by the

prisoner.

A number of matters in those conditions have been discussed at

length during the hearing.  A suitable place of residence for

Mr Buckby is critical and I have been informed by counsel for

the Attorney on instructions from the Corrective Services

Department that such accommodation will be available to him

upon his release on property owned by the Corrective Services

Department.

There are numerous conditions to reduce his opportunity to

re-offend, including, but not limited to, electronic

monitoring of the respondent, curfew conditions, conditions

which limit his opportunity to be near children and

particularly important in the case of this offender who has

offended against children in caravan parks that he not reside

at a caravan park or at any other short-term accommodation

residence.

In addition to those numerous conditions are conditions which

are requirements to address his integration needs.  It is

critical that he undertake any test or treatment as deemed

necessary by a treating psychiatrist or supervising corrective

services officer including in his case testing for organic

brain injury and those conditions are part of the conditions

which have been put in the draft supervision order.

Mr Buckby must be aware of the dire consequences not only of

re-offending but of breaching any of the conditions to which

he will be subject on his release.  He has given instructions

to his counsel that he is prepared to comply with all of the

conditions found in the draft order.

In the circumstances I am prepared to make the order set out

in the draft supervision order.  I find that I am satisfied to

the requisite standard that the respondent Desmond George

Buckby is a serious danger to the community in the absence of

an order pursuant to Division 3 of the Dangerous Prisoners

Sexual Offenders Act 2003, and secondly, that the respondent

be subject to the following conditions until - 10 years after his release - his full-time release date is the 14th of May 2017 - or further order of the Court.  The conditions will be those set out in the draft order.  There are 40 conditions set out in the draft order and I have included in condition 22 after the word "endocrinologist" the words "and testing for organic brain injury".

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