Attorney-General for the State of Queensland v Cooper
[2016] QSC 6
•13 January 2016
SUPREME COURT OF QUEENSLAND
CITATION:
Attorney-General for the State of Queensland v Cooper [2016] QSC 6
PARTIES:
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
DEREK DANIEL COOPER(respondent)
FILE NO/S:
SC No 10198 of 2015
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at BrisbaneDELIVERED ON:
13 January 2016
DELIVERED AT:
Brisbane
HEARING DATE:
7 December 2015
JUDGE:
Ann Lyons J
ORDERS:
1. The Court, being satisfied to the requisite standard that the respondent, Derek Daniel Cooper, 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 (Qld) orders that the respondent be subject to a supervision order in terms of the order in the attached Schedule until 17 January 2021.
2. Direct that a copy of the reports of Dr Josephine Sundin dated 10 June 2015, Professor Barry Nurcombe dated 7 November 2015 and Dr Joan Lawrence dated 10 November 2015 as well as a copy of this decision be provided to the respondent’s treating psychiatrist or psychologist.
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 applicant seeks an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) that the respondent be detained indefinitely for control, care or treatment, or alternatively, that the respondent be released from custody subject to a supervision order – whether the respondent should be subject to a Division 3 order
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, s 13
COUNSEL:
J Rolls for the applicant
B Mumford for the respondent
SOLICITORS:
G R Cooper Crown Solicitor for the applicant
Legal Aid Queensland for the respondent
This application
This is an application by the Attorney-General for a Division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). The applicant seeks orders pursuant to s 13 of the Act for either a continuing detention order or an order that the respondent be released from custody subject to a supervision order.
Counsel for the respondent argues that given the respondent’s age and lack of criminal history prior to these offences, he should not be subject to supervision under the dangerous prisoner regime.
Background
The respondent is currently 56 years of age. On 16 January 2008, he was sentenced, after pleading guilty, to eight years’ imprisonment for sexual and violent offences committed against a single victim on a number of dates. In September 2010, he was released from custody on parole but he breached his parole four years later in October 2014. His parole was suspended and he was returned to custody. His current custodial end date is 17 January 2016. He has no history of sexual offending prior to the offences for which he is presently in prison.
The offences for which he is in custody relate to maintaining an unlawful relationship with a child, rape and assault occasioning bodily harm. The offences were committed against his step-daughter who was aged between seven and eight at the time of the offending and occurred over an 18 month period. He was married to the victim’s mother at the time. The sexual acts involved the respondent ejaculating into the victim’s mouth, which usually occurred when the victim’s mother was absent or asleep. On some occasions, the victim was punched and kicked by the respondent prior to being sexually assaulted. He would often speak to her in a profane manner whilst inserting his penis into her mouth.
The rape offence occurred when she was seven years old. The respondent became angry and then punched and kicked the victim, held her upside down, put his penis in her mouth and smacked her.
The offence of assault occasioning bodily harm occurred when the victim was eight years old. The respondent punched her to the mouth with a closed fist causing her to fall down the stairs.
The victim’s relationship with the respondent was characterised by him having a high level of control over her physically and verbally. The oral penetration would occur at least weekly. The offending was discovered when she made disclosures to the Department of Child Safety in November 2005. When he was initially interviewed, the respondent denied all the allegations but ultimately pleaded guilty.
The respondent is a reportable offender under the Child Protection (Offender Reporting) Act 2004 (Qld), as he has a conviction for a sexual offence against a child. He was required to report to police for five years commencing on 6 September 2010. On 8 October 2014, police attended his residence to conduct compliance checks and discovered that a 15 year old female had been residing with him for approximately three months. He was arrested on 9 October 2014. He pleaded guilty and a conviction was recorded. He was sentenced to three months’ imprisonment with a parole eligibility date set at 8 December 2014. His parole order, however, was suspended as this was a breach of a condition of the order and he was returned to custody.
The respondent has been married three times and has a history of anger management issues. He has two sons with his third wife who is the victim’s mother. The respondent was involved in a workplace injury in 1999 which caused a serious laceration to his throat and other injuries to his head and neck. He was hospitalised and suffered post-traumatic stress disorder.
The respondent’s conduct in prison was good and he was noted to be a hard worker. He has completed various educational and vocational studies whilst in prison. He also participated in treatment programs, including the Sexual Offending Program completed on 30 April 2009, the Getting Started: Preparatory Program completed in December 2009 and the Medium Intensity Sexual Offending Program (MISOP).
Reports of psychiatrists
The respondent has been examined by three psychiatrists pursuant to the Act. Dr Josephine Sundin’s report is dated 10 June 2015, Professor Barry Nurcombe’s report is dated 7 November 2015 and Dr Joan Lawrence’s report is dated 10 November 2015.
Report of Dr Josephine Sundin
Dr Sundin considered that the respondent met the criteria for a DSM-V diagnosis of a paedophilic disorder of a non-exclusive type and was sexually attracted to females limited to incest. Dr Sundin considered that the respondent acted out sexual urges and maintained a sexual relationship with a child which he maintained despite her evident distress. Whilst he has a rigid over controlling personality type with an avoidant coping pattern, Dr Sundin did not consider that he met the criteria for a personality disorder. She also considered that, despite a past history of post-traumatic stress disorder, the symptoms have been in abeyance for some time.
In terms of the risk assessment instruments, Dr Sundin considered that on the Static-99R the respondent scored 0 with the only positive score being his conviction for the index non-sexual violence and therefore he was considered to be at a low risk for future sexual recidivism. On the SVR20, he had indications of sexual deviation, relationship problems, past non-sexual violent offences, supervision failure, minimisation and denial of offences and negative attitudes towards intervention. Dr Sundin considered that although he was in a low to moderate offender group in terms of future recidivism, the assessment of his risk had increased due to his parole breach, his negative attitudes towards intervention and his regression into a position of minimisation and denial of offences. On the Hare Psychopathy Rating Scale, Dr Sundin did not consider that he met the criteria for psychopathy.
Dr Sundin gave evidence that the respondent appears to have regressed from the gains he made in the MISOP program, has reverted to his previous position of anger and has a perception of himself as an unhappy and unlucky victim. Dr Sundin also expressed concerns in relation to the varying accounts he gave in relation to the presence of the 15 year old girl in the house. Dr Sundin was concerned that the respondent had dropped out of the Sexual Offenders Maintenance Program (SOMP) and was disparaging in his assessment of it.
Dr Sundin considered, however, that the respondent presented with a number of atypical features in that he was middle aged when he committed his first offence. He was then released on parole and breached parole after four years in the community. He did not commit another sexual offence whilst on parole. Dr Sundin also gave evidence that as the respondent was currently 56 years of age “He’s rapidly approaching a time when his risk drops off even more dramatically”[1] and accordingly, she had “a great degree of hesitation about recommending a supervision order in this man, given various unique qualities of the case”.[2]
[1] T1-36 ll 19-20.
[2] T1-36 ll 21-23.
Dr Sundin considered that the respondent could be managed in the community under a supervision order and stated that he should be referred to a clinical psychologist to work through his persistent cognitive distortions, habits of blame attribution, denial of responsibility and low self-confidence. Counselling and the completion of the SOMP should also be part of the recommendations.
Report of Professor Barry Nurcombe
Professor Nurcombe made a diagnosis of paraphilia, namely paedophilia non-exclusive involving under aged females. He noted that the respondent had left school at the age of 15 and had a consistent work history but he had three marriages which had failed because of his long absences due to his occupation as a truck driver and his service in the Army Reserve. Professor Nurcombe noted that he was currently in good physical health, but referred to the serious injury at the age of 30 that resulted in multiple injuries and post-traumatic stress disorder which has currently abated. Professor Nurcombe noted the pleas of guilty to the charges, but noted that he denied there was more than one offence despite pleading guilty to a number of offences.
Professor Nurcombe also administered a number of actuarial instruments to determine the respondent’s risk of sexual and/or violent reoffending. On the psychopathy checklist, his score of 10/40 was well below the cut-off for a diagnosis of a psychopathic personality disorder. However, he noted the lack of remorse and his failure to take responsibility for his own actions. On that Static-2002R, he had a score of 1/13 which places him in the low risk category for sexual recidivism with regard to risks of future recidivism. On the STABLE 2007, it was assessed that he had few significant social influences in the community and has made poor choices of women in his life.
Professor Nurcombe also referred to the respondent’s three divorces and a fourth failed relationship. He considered that he tends to be a loner and demonstrates a lack of concern for others. In his view, a moderate level of treatment is needed. On the VASOR, the respondent achieved a score of 18/125 which means that he is at a low risk of sexual recidivism. On the SVR20, Professor Nurcombe noted risks, namely relationship problems and extreme minimisation and denial of sexual offending. He also had sexual deviation and negative attitudes towards intervention. He considered, however, those results are consistent with a low risk of sexual recidivism.
Professor Nurcombe also noted that the history of sexual violence had not been chronic, diverse or escalating but that a degree of physical and psychological coercion must have been involved. Professor Nurcombe considered that if the victim’s account is correct, the respondent is minimising, denying and rationalising the sexual violence and noted that he did not have a psychopathic personality disorder or any major mental illness. Neither does he have any problems with substance abuse or violence with suicidal ideation. Whilst he has difficulties sustaining social relationships, he is a good worker and there is no history of non-sexual criminality.
Professor Nurcombe considered that if the respondent were to reoffend, it would be against a pre-pubertal or early pubertal female in the context of a family relationship. He does not consider that he is a predatory offender and is not likely to seek victims in parks or other areas where children congregate. He did not consider that he was likely to become involved in non-sexual criminality.
Professor Nurcombe also referred to the respondent’s disparaging comments about the SOMP, as he considered that he had learnt nothing from it and dropped out. It would seem that he considered that the SOMP was “too superficial”.[3]
[3] T1-40 l 33.
Professor Nurcombe was uncertain whether the respondent needed to be managed under a supervision order. He stated:
“‑‑‑Like Dr Sundin, I was really hesitant about whether this man presented a sufficiently high degree of risk to warrant his coming under the DPSOA. The reason I eventually thought that he should was because of his dense denial of what happened and the denial appeared to get more intense as time went on. I believe I understand the reason for that. I even think he’s not lying, but this is a man who has a view of himself as a man and being a paedophile does not fit with that view. His attempts to exclude things that are dissonant with his view of himself.
But you diagnose him with a paraphilia of paedophilia?‑‑‑Technically, it must be so. Yes.
So he denies a feature of himself which is central to his risks?‑‑‑Yes.”[4]
[4] T1-41 ll 12-23.
Overall, Professor Nurcombe considered that the risk of sexual reoffending is low. However, if there was another sexual offence committed, he considered that it would give rise to serious psychological trauma. Professor Nurcombe’s main concern about the index offence was that it showed the possible victimisation of the child as well as the respondent’s denial and minimisation of his offending.
Ultimately, Professor Nurcombe considered that if he was to be placed on a supervision order, the risk of reoffending would be minimal. He recommended a term of not more than five years and that consideration should be given to the early removal of a tracking device. He also considered that psychological intervention during the duration of the order would be important and that it would not be necessary for him to do the SOMP or the MISOP if he had individual psychotherapy from a psychologist. Professor Nurcombe also stated that it would be beneficial for that psychologist to read the reports of himself and Dr Sundin and Dr Lawrence. On balance, he considered that he should be prohibited from drinking alcohol given his previous offence of driving under the influence.
Report of Dr Joan Lawrence
Dr Lawrence also noted that there was no evidence of psychopathy in terms of the PCL-R scale. She noted also that the respondent has not maintained the gains or insight displayed on the completion of the MISOP course and that he continued to display negative attitudes towards therapeutic intervention. Dr Lawrence considered that he lacked insight as to his vulnerabilities for future reoffending.
In terms of the VRAG assessment, the respondent was placed in Category 3, which means that the risk of reoffending is not high. In terms of the SORAG, he achieved a score of -6 which translates to a Category 2 indicating that he is in a group of offenders where the risk of reoffending sexually within seven years and 10 years is not considered to be high. On the Static-99, he achieved a score of 1, which assesses him in the low risk category. On the SVR20, whilst he was having relationship problems, had past supervision failures and displayed extreme minimisation or denial of his sexual offences, he was assessed as having a low risk for sexual violence.
Dr Lawrence noted that he was convicted on his own plea of oral rape and maintaining a relationship with his step-daughter over a period of 12 to 18 months. She further noted that the respondent denied the extent of the charges, claimed that it was one incident and that it was an accident. Dr Lawrence stated that when the respondent was released on parole, he breached parole conditions when a random audit was carried out and was returned to custody. The respondent denies any aberrations and she noted that there is no other sexual offence in his criminal history.
Dr Lawrence also noted that he failed to comply with the requirement to attend a SOMP whilst on parole. This was done with the knowledge and approval of his parole officer apparently, as he prioritised his employment over a need to attend the program. Dr Lawrence considered that the respondent is still minimising and denying his offending behaviour and failed to take responsibility for it. She noted that he continues to have problems with intimacy and uses work as a barrier to avoid more intimate contact with people. She also noted his contemptuous attitude towards the MISOP program.
Significantly, Dr Lawrence noted that whilst the respondent’s sexual offences have been few in number, they were serious in respect of the trauma that they caused the victim. However, she considered that the absence of other sexual offending and the absence of positive proof of other sexual deviation would support a view that the risk of reoffending is low. She acknowledged, however, that without changing his intimate relationship approach and his psychological defence of avoidance, the risk of reoffending to some future vulnerable child must be seen as a distinct possibility.
Dr Lawrence considered that the respondent needed to complete a refresher course on Sexual Offender Therapy prior to release and that he should be required to attend a psychiatrist or a psychologist on an individual basis. She considered that attendance at a SOMP would be insufficient and that due to his psychological defences, an individual therapist skilled in the management of sexual offenders may well be more productive in achieving change. She noted that it was important for him to maintain employment and that given his age, a supervision order for five years would be appropriate.
Should a Division 3 order be made?
Counsel for the respondent submits that there is insufficient evidence to satisfy the court to a high degree of probability by acceptable and cogent evidence that the respondent is a serious danger to the community in the absence of a Division 3 order. It is argued that the real consideration in this case is whether there is evidence indicating that the respondent has a propensity to commit serious sexual offences in the future when all of the reports indicate that the respondent’s risk is low or in the low to moderate range. The risk is that he would abuse a pubertal or pre-pubertal female in the context of a family relationship.
It is clear that the objects of the Act are to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community and to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.[5]
[5] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3.
The Act establishes a scheme for continued detention in custody or supervised release for those prisoners who are deemed to be at risk of committing serious sexual offences if released at all or if released without a supervision order.
Having considered the requirements of the Act, it is clear that the first question is whether or not the court is satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order. The respondent would be considered to be a serious danger to the community if there is an unacceptable risk that he would commit a serious sexual offence if released without such an order. Concerningly, since the respondent’s release in September 2010, he has failed to complete the SOMP and he has minimised and rationalised his offending behaviour. The psychiatrists also considered that there has been an escalation in the emotionally avoidant pattern of behaviour. All of the psychiatrists expressed concerns about the fact that his risk assessment has now increased due to his parole breach, his negative attitudes towards intervention and his regression into a position of minimisation and denial of offences.
I consider that the respondent requires further treatment and management in the community in order to manage the risk that he presents given the deterioration since he was initially released on parole in September 2010. It would seem clear that all the progress he made whilst in custody has been negatived to a large extent by his current attitudes and behaviour. Having considered the material, I am satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order. Whilst the psychiatric assessments indicate that the risk the respondent presents upon his release is low or low to moderate, the real concern is that should there be any further sexual offences, the consequences to a victim would include severe psychological damage.
I am satisfied therefore that there is sufficient and cogent evidence to a high degree of probability that if the respondent is released from custody without a Division 3 order under the Act, there is an unacceptable risk that he will commit a serious sexual offence.
In determining whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure the adequate protection of the community. The onus of demonstrating that a supervision order affords protection to the community is on the applicant, but it must be necessary to conclude on all of the evidence that a supervision order would be efficacious in constraining the respondent’s behaviour.
I am satisfied that the respondent’s risks of sexually reoffending being in the low to moderate range is such that it can be managed pursuant to a supervision order which contains specific conditions to manage the risk that he presents.
All of the examining psychiatrists considered that the respondent needs to participate in further treatment in relation to his sexual offending. There is a divergence of views, however, as to the best way that can be achieved whether by participation in the SOMP, by undertaking the MISOP or by individual psychotherapy. The evidence at the hearing was that all released prisoners who are subject to the Act are referred to a suitably qualified psychologist or psychiatrist who can address their offending behaviour and assist in their treatment. The current proposal in relation to the respondent is that he will be referred to the Forensic Psychology Clinic for assessment and treatment should he be released on 17 January 2016.
The evidence indicates that once that assessment is completed, treatment is then provided in consultation with the Queensland Corrective Services (QCS). Significantly, part of that assessment involves a consideration of the reports which have been provided as part of this application. There is then an ongoing involvement between QCS and the treating psychologist or psychiatrist in relation to treatment needs. It is important that the reports of Professor Nurcombe, Dr Sundin and Dr Lawrence be considered by the treating psychologist or psychiatrist and that their recommendations be considered. It is also important that the respondent receive the psychiatric or psychological counselling in the community as indicated by all three psychiatrists. Furthermore, the respondent needs supervision to monitor his cognitive distortions and ensure that he undertakes appropriate interventions. I am satisfied that the imposition of those conditions will manage any risk that is presented.
There should therefore be an order that the respondent be released from custody subject to a supervision order for a period of five years and that he must comply with the conditions set out in the draft order.
Orders
The orders of the Court are as follows:
1.The Court, being satisfied to the requisite standard that the respondent, Derek Daniel Cooper, 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 (Qld) orders that the respondent be subject to a supervision order in terms of the order in the attached Schedule until 17 January 2021.
2.Direct that a copy of the reports of Dr Josephine Sundin dated 10 June 2015, Professor Barry Nurcombe dated 7 November 2015 and Dr Joan Lawrence dated 10 November 2015 as well as a copy of this decision be provided to the respondent’s treating psychiatrist or psychologist.
The orders of the Court are that:
The Court, being satisfied to the requisite standard that the respondent, Derek Daniel Cooper, 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 (the Act) orders that:
The respondent be subject to the following requirements until 17 January 2021.
The respondent must:
General Terms
report to a Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of his release from custody and, at that time, advise the officer of his current name and address;
report to, and receive visits from, a Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services;
notify, and obtain the approval of, a Corrective Services officer for every change of his name, place of residence or employment at least two (2) business days before the change happens;
be under the supervision of a Corrective Services officer;
comply with a curfew direction or monitoring direction;
comply with any reasonable direction under section 16B of the Act given to him;
comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order;
not leave or stay out of Queensland without the permission of a Corrective Services officer;
not commit an offence of a sexual nature during the period of the order;
Employment
seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;
notify a Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed at least two (2) days prior to commencement or any change;
Residence
reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;
if this accommodation is of a temporary or contingency nature, comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services;
not reside at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services officer;
General Offending
not commit an indictable offence during the period of the order;
Requests for Information
respond truthfully to inquiries by a Corrective Services officer about his activities, whereabouts and movements generally;
Contact with Victim
not to have any direct or indirect contact with the victim of his sexual offences, except with the prior approval of a Queensland Corrective Services officer;
Disclosure of weekly plans and associates
submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;
disclose to a Corrective Services officer, upon request, the name of each person with whom he associates and respond truthfully to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour;
if directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by a Corrective Services officer who may contact such persons to verify that full disclosure has occurred;
Motor Vehicles
notify a Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use;
Alcohol and Substances
abstain from the consumption of alcohol and illicit drugs for the duration of this order;
submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer;
disclose to a Corrective Services officer all prescription and over the counter medication that he obtains;
Treatment and Counselling
attend upon and submit to assessment, treatment, and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist;
permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order;
attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;
Contact with children
not establish or maintain any supervised or unsupervised contact including undertaking any care of children under 16 years of age except with the prior written approval of a Corrective Services officer. The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the respondent to guardians or caregivers and external agencies (i.e. Department of Communities (Child safety Services)) in the interests of ensuring the safety of the children;
advise a Corrective Services officer of any repeated contact with a parent of a child under the age of 16. The respondent shall, if directed by an Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by a Corrective Services officer who may contact such persons to verify that full disclosure has occurred;
Devices
allow any other device including a telephone to be randomly examined. If applicable, account details and/or telephone bills are to be provided upon request of a Corrective Services officer; and
advise a Corrective Services officer of the make, model and telephone number of any mobile telephone owned, possessed or regularly utilised by him within 24 hours of connection or commencement of use and advise a Corrective Services officer of any changes to mobile telephone details.
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