Attorney-General for the State of Queensland v. Burke

[2008] QSC 313

[2008] QSC 313

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION

MULLINS J

No 8272 of 2008

ATTORNEY-GENERAL FOR THE	Applicant
STATE OF QUEENSLAND
and
DARCY ROBERT BURKE	Respondent
BRISBANE
..DATE 02/12/2008
..ORDER

HER HONOUR: This is an application under the Dangerous

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Prisoners (Sexual Offenders) Act 2003 that Mr Burke be the
subject of a Division 3 order. Mr Burke is nearing the
conclusion of a period of imprisonment of approximately 13
years. He is 39 years old. He was raised in the Cherbourg

community and identifies strongly with his Aboriginality.	10
Mr Burke had a dysfunctional childhood. He was physically and
sexually abused. From the age of nine years, he was placed for a short period in a boys' home under a care and control order. On his return to Cherbourg, he associated with	20
delinquent peers and commenced antisocial activities, including sniffing petrol. He became a user of cannabis sativa from age 11 years, and abused alcohol from an early age. In 1985 he spent three months in another boys' home.
30
His criminal history as an adult dates from 1987. His criminal offending is consistent with someone who could not observe the legal constraints placed on members of any community.
40
His first sexual offence was committed in about 1992. He was
looking after the young daughter of a friend. He was under
the influence of alcohol. He was intending to assault her and
was violent towards her, and had removed her clothing from her
waist down. He did not actually sexually assault her. He was	50
sentenced to two years' imprisonment.

His current term of imprisonment dates from August 1995. He was first charged with a rape that was committed in February 1995. He was on bail for that rape when he committed a second 2 ORDER 60

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rape in August 1995. He was given a sentence of imprisonment

of six years for the first rape.

The second rape also involved an assault with intent to	10
sodomise the victim. He was given a cumulative sentence of seven years for the second rape, and a concurrent sentence of three years with the term of seven years for the assault.
His full-time discharge date is 17 December 2008. For most of	20
the last 28 years, except for one period of about 12 months, the respondent has been institutionalised.
The offences of rape were opportunistic. In each case he
befriended the victim a short time before committing the	30
offence. There was consumption of alcohol or cannabis sativa involved, and he then committed the offence.
The respondent had attempted suicide on four occasions before
his current imprisonment. He was sexually active with girls	40
from about the age of 14 years. He had difficulty in entering
into any meaningful relationship. He fathered five children
from five relationships over a short period of time. Of those
children, he commenced contact with one daughter, who is now
24 years old. He first met her in 1998.	50

He has made seven applications for parole. Each was rejected.
His behaviour in custody improved after 2004. He underwent
the Indigenous Sexual Offenders' Treatment Program for 11
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months from May 2001. He received a positive report on
completing that program. He also underwent other courses in prison including anger management and stress management. He underwent the Sex Offenders' Maintenance Program that he

completed in May 2006. He also received a positive report	10
from his participation in that program.
For the purpose of this application, I heard evidence from
four psychiatrists. There were written reports from each of
these psychiatrists in the material that was before the Court.	20
Dr Kar examined the respondent in August 2007 for the purpose of a parole application. Dr Kar was supportive of the parole application because he considered that the respondent needed
appropriate supervision in the community to be monitored for	30
drug and alcohol abuse which were identified as critical
factors in Mr Burke's past sexual offending. Dr Kar
considered that Mr Burke's motivation not to re-offend was
genuine. Dr Kar maintained his opinion about the benefit for
Mr Burke of appropriate supervision in the community for the	40
purpose of this application.
Professor James was engaged by the applicant to assess whether
the respondent should be the subject of an application for a
Division 3 order. Professor James' report is dated 12	50

December 2007 and was prepared after Professor James examined
Mr Burke for three hours at the correctional centre.
Professor James expressed the opinion that Mr Burke would
currently represent a serious risk to the community if he were
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discharged without further treatment or preparation for his
future life in the community and that the risk would be a high
risk. Professor James also noted Mr Burke's very strong
Aboriginal and tribal identification and expressed the view

that it was vital to incorporate this identification in any	10
plan for Mr Burke's release and reintegration into the community. Professor James observed that it was a challenging issue for those charged with planning and overseeing Mr Burke's rehabilitation.
20
Professor James repeated those views in the oral evidence before me and identified the importance to the success of any supervision order for the respondent that cultural reassimilation of the respondent be addressed.
30
The Court had ordered that two psychiatrists undertake
independent reports of the respondent for the purpose of
section 11 of the Act. Those psychiatrists were Professor
Nurcombe and Dr Beech. They were the other witnesses who gave
oral evidence.	40
Professor Nurcombe expressed a similar opinion to Professor
James on the critical issue of Mr Burke's identification based
on his Aboriginality and related it to the wider issue of the
need for authorities that are responsible for administering	50
the Act to recognise and address the challenges that exist in the application of the Act to indigenous offenders.

Professor Nurcombe stated at the hearing on 17 November 2008,
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"The problem is when the State introduced this legislation, I
think the State - we - all the of the people involved
Corrections, Crown Law, psychiatrists and psychologists
involved in the case, had no idea of the complexity of the

issues that were going to be involved and particularly, since	10
about 30 percent, I understand, of people in the Dangerous
Prisoners' Program are Aboriginal, we had no idea of what to
do about that issue. I mean, I think there needs to be a
conference of all people concerned to start to think about
what the ideal programs are (sic) required for Aboriginal	20
offenders and to start to plan in a more complex way. We just do not have the information at this point to know what to do."
Professor Nurcombe's opinion expressed in his report was that,
the risk of sexual violent offending is high for the	30
respondent but if the favourable changes in dynamic factors
such as attitudes condoning sexual violence, capacity for
empathy, sense of responsibility for the offence and capacity
to control impulsive behaviour are authentic and durable in
the face of stresses of life outside the prison, Mr Burke's	40
risk of sexual or violent re-offending can be regarded as moderate to high.
Dr Beech interviewed Mr Burke for three and one-half hours.
Dr Beech diagnosed Mr Burke as suffering from an antisocial	50

personality disorder, but Dr Beech recognised that Mr Burke
had benefited from the programs undertaken in prison. Dr
Beech was of the opinion that Mr Burke still represents a
moderately high risk of sexually re-offending if released in
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the community, but that the risk of re-offending would be
substantially reduced if supports are put in place to assist

the respondent's reintegration into the community.

Dr Beech identified as supports that are appropriate as stable	10
accommodation and links to community agencies that would
assist in the transition as well as in finding employment and
social contacts, and that the respondent should receive
individual psychological support both for his childhood abuse,
but also to help with his relapse prevention, and that he	20
would benefit from involvement in a Community Sexual the importance of supporting and encouraging Mr Burke to abstain from alcohol and other substances.
30
Mr Burke himself has recognised in prison the need for
assistance on his release from custody in both alcohol and
drug counselling and a Community Sexual Offenders' Program.
This was part of his application for parole. He has also
undergone a Transitions Program in prison to assist him in	40
making the transition from institutional life, which has marked almost all of his adult life, to community living.
After the hearing of the further psychiatric evidence on 17
November 2008, the hearing of the application was adjourned to	50

enable further inquiries to be made by Legal Aid Queensland on
behalf of the respondent and Crown Law and the Corrective
Services Department as to options for the accommodation for
the respondent and the access to counselling and support by
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any organisation or counselling service that was qualified in

supporting indigenous sex offenders.

Further affidavits were filed at the hearing today from

Ms Lynas, the Director of the High Risk Offender Management at	10
Queensland Corrective Services, and Mr Law, the legal officer
at Legal Aid who has the carriage of the matter on behalf of
the respondent. These affidavits deal with the further inquiries that have been made seeking accommodation and counselling for the respondent. The assistance given by both	20
sides of the record in endeavouring to respond to the issues that remained outstanding after the hearing on 17 November 2008 must be acknowledged.
One of the inquiries made by Mr Law was with the Aboriginal	30
and Torres Strait Islander Legal Service Queensland Ltd. A further affidavit was filed today by Mr Mark Conway, a senior social worker with that service. Mr Conway attended
for an interview with Mr Burke yesterday regarding possible
release proposals for Mr Burke that would facilitate his	40
release under a supervision order under the Act. Mr Conway deals at length in his affidavit with the proposals that he was able to put to Mr Burke and Mr Burke's response to
Mr Conway of what he saw as to what was required of him in
order to perform appropriately under the supervision order and	50

remain offence free. It is of assistance that Mr Conway was
able to undertake this interview at short notice and was able
to put in train inquiries that can be pursued before the full
time discharge date of 17 December 2008.
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At the hearing on 17 November 2008, the Attorney-General had
proposed conditions that could be seen as appropriate for a
supervision order in relation to the respondent. Although the

application under the Act, as filed, seeks either a continuing	10
detention order or a supervision order, Ms Maloney, on behalf
of the Attorney-General, acknowledged that a supervision order
on the conditions proposed would be an appropriate order in
the circumstances, given the evidence of the psychiatrists on
this application.	20
As was observed by Mrs Ryan on behalf of the respondent, none
of the psychiatric reports recommends continuing detention for
Mr Burke. Mrs Ryan, on behalf of the respondent, conveyed to
the Court that the respondent accepts that the applicant has	30
proven to the standard required under section 13(3) of the Act that he is a serious danger to the community in the absence of a Division 3 order.
Although the positions adopted in response to the application	40
by both the Attorney-General and the respondent are helpful,
the Court has to determine the application and whether to make
a Division 3 order by reference to the matters that are set
out in section 13(4) of the Act. The Court may decide that it
is satisfied that the respondent is a serious danger to the	50

community in the absence of a Division 3 order only if it is
satisfied by acceptable, cogent evidence and to a high degree
of probability that the evidence is of sufficient weight to
justify the decision.
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The evidence of Dr Kar, Professor James, Professor Nurcombe
and Dr Beech is acceptable and cogent and satisfies me to the
high degree of probability that is required under the Act that

the respondent's moderately high risk to high risk of sexually	10
re-offending, unless appropriately supervised, is an unacceptable risk in terms of section 13(2) of the Act.
I accept the psychiatrists' opinions that 10 years would be an
appropriate period for a supervision order for Mr Burke.	20
I am satisfied that appropriate conditions have been
formulated for a supervision order in the light of the psychiatric evidence pertaining to Mr Burke and that a supervision order should be made in the terms of the draft	30
order initialled by me and placed with the file.
...

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