Attorney-General for the State of Queensland v Costello

[2010] QSC 456

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Costello [2010] QSC 456

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF
QUEENSLAND
(applicant)
v
DARREN MICHAEL COSTELLO

(respondent)

FILE NO:

BS9809 of 2010

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

3 December 2010 (ex tempore reasons)

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2010

JUDGE:

Mullins J

ORDER:

Order as per amended draft initialled by Mullins J and placed with the file.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER MATTERS – where respondent currently serving a term of imprisonment for the rape of a 14 year old girl – application for orders pursuant to s 13 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether the respondent is a serious danger to the community in the absence of a division 3 order – whether a supervision order rather than a continuing detention order can ensure adequate protection of the community – whether the requirements of the proposed supervision order can be reasonably and practicably managed by Corrective Services officers – where supervision order made for a period of 10 years

COUNSEL:

B H Mumford for the applicant

J M Sharp for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the applicant
Legal Aid Queensland for the respondent

HER HONOUR:  The Attorney-General applies for an order under
the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act)
for either a continuing detention order in relation to the
respondent, or a supervision order upon the respondent's
release from prison, which is due to occur on 7 December 2010.

A risk assessment was initially done for the purpose of the
Act in relation to the respondent by psychiatrist Dr Moyle.
In addition, Court-appointed psychiatrists, Professor Nurcombe
and Dr McVie, have assessed the risk of whether the respondent
will commit sexual offences upon release.  The opinions of the
psychiatrists range from moderate to moderate to high risk of re-offending.

All the psychiatric evidence points towards a supervision
order being the appropriate means in the circumstances to
manage that risk.  Although the applicant does not desist from
seeking a continuing detention order, the applicant
realistically accepts that the psychiatric evidence supports
the future management in the community of the respondent under
a supervision order with conditions that address the matters
that are particularly relevant to the risks of the respondent
sexually re-offending.

The respondent is 39 years old.  He has been in prison in
relation to his current imprisonment since 24 November 1995, a
period of 15 years.  The sexual offence that has resulted in
the regime under the Act being invoked in relation to the
respondent was a vicious rape of a 14 year old girl that was
committed by the respondent on 22 November 1995 whilst he was
on parole after having served some 18 months of a sentence of
four years, six months for an armed robbery and associated
offences of violence arising from a home invasion in
connection with a drug debt.

The respondent pleaded guilty to the offence of rape.  It was
tragic that the victim committed suicide before the sentencing
of the respondent took place.  The victim's mother has been
notified of this application and has provided a written
submission to the Court, which I have read.  The victim's
mother makes submissions on the basis of assumptions that are
not borne out by the psychiatric evidence.  Although her
daughter was 14 years old when raped, the psychiatric evidence
does not diagnose the respondent as a paedophile.  He was in a
relationship with an older woman at the time he committed the
sexual offence and his history of relationships involved older
women.

I have read, with sympathy, the submissions of the victim's
mother.  Those submissions, however, are to be taken into
account with the other evidence that is before the Court,
which overwhelmingly supports the conclusion that the
respondent is not a paedophile, but has other issues that
require to be managed in order to moderate the risk of sexual
re-offending.  The victim's mother also expresses personal
fear for her safety as a result of the release of the
respondent from prison.  That fear is not borne out by the
other evidence that is before me.
The respondent appears to have been using alcohol and illicit
substances, commencing with marijuana, at the age of 12 years.
He left school in the middle of Year 8.  He has a significant
stammer, which caused problems for him whilst at school and
resulted in issues such as a lack of self-esteem.  His use of
illicit substances escalated from cannabis sativa to other
drugs such as amphetamines.  Alcohol and drugs appear to have
been part of his problem, which resulted in the commission of
other offences, apart from the rape that I have already
referred to.  The addiction to alcohol and drugs is of such
concern in the material before me that it is a matter which is
at the forefront for those who have been responsible for
fashioning the conditions of the supervision order.

The psychiatric evidence summarises the treatment and
diagnoses that have been made in respect of the respondent
whilst in prison.  The respondent's symptoms have been
inconsistent and the diagnoses that have been made of his
mental health issues over the years have also varied.
Dr Moyle described the respondent's descriptions of his
symptoms and experiences as possibly consistent with
the respondent suffering a chronic paranoid schizophrenia.  On
any view, however, Dr Moyle was of the opinion that the
respondent's personality is disordered and his mental health
issues in conjunction with his life-long mental slowness and
his drug abuse have affected the respondent's ability to deal
with his own issues.

Dr Moyle concluded that the respondent posed a moderately high
risk of violent sexual re-offending, but was of the opinion
that his issues could be treated by a graded reintroduction to
the community using the facilities set up by Community
Forensic Mental Health Services, and ensuring that the
respondent had continued monitoring by the Corrective Services
officers with the respondent's compliance with a Forensic
Mental Health Management Plan.

Professor Nurcombe spent five hours with the respondent when
he interviewed him on 15 November 2010.  Professor Nurcombe
isolated symptoms of a post-traumatic stress disorder that was
related to an early experience by the respondent of sexual
abuse in the prison system in the early 1990s.  Professor
Nurcombe was not convinced that the respondent was suffering
from a schizophrenic-type condition, but did diagnose a
psychotic disorder and alcohol and marijuana abuse disorder,
although that disorder was in remission due to his
imprisonment.

Professor Nurcombe expanded on the diagnosis and suggested
that the psychotic disorder may be secondary to drug and
alcohol abuse and that the respondent may have an antisocial
personality disorder with psychopathic traits.  Professor
Nurcombe thought that it was also appropriate to diagnose the
respondent with chronic post-traumatic stress disorder related
to the homosexual rape that the respondent had experienced in
prison, and in respect of which the symptoms were
intermittently reactivated in times of stress for the

respondent.

Professor Nurcombe could find no evidence of sexual deviation
and considered that what has to be treated is the major mental
illness, from which it is clear the respondent suffers,
although the precise diagnosis of which is unclear.  The
respondent is presently being treated by the prison Mental
Health Service and is medicated for his mental illness, and
both Dr Moyle and Professor Nurcombe are at one in
recommending the continued medication and treatment by a
Mental Health Service for the respondent's mental illness.

Professor Nurcombe noted the extremely low self-esteem that
the respondent presents with, and both Professor Nurcombe and
Dr Moyle agreed with the suggestion put to them by the
respondent's counsel that speech therapy to address the
significant speech impediment from which the respondent
suffers would assist in addressing this problem of low self-esteem.

Professor Nurcombe was of the opinion that the likelihood of
further sexual re-offending in the absence of a supervision
order is moderate to high, but with a supervision order, the
likelihood drops to moderate to low.  Professor Nurcombe
recommended that the supervision order be of 10 years
duration.

Dr McVie interviewed the respondent on 4 October 2010.  She is
of the opinion that the respondent is of moderate to high risk
of re-offending in a sexual manner and that in order to reduce
the risk of re-offending, that the respondent must remain
abstinent from alcohol and illicit substances and that
conditions addressed to achieving that should be monitored
closely and randomly checked regularly.

Dr McVie recommends that the respondent requires an intensive
supervision order in order to transition to a public Mental
Health Service treating psychiatrist and transitional support
that will build on the treatment that he has received whilst
in prison.  Because of the respondent's limited intellectual
capacity, Dr McVie flags that he will need ongoing and
repeated reenforcements of the principles involved in all the
programs that the respondent successfully completed in
custody.  Dr McVie considers that the respondent will also
require supervision for at least 10 years.

Ms Sharpe, of counsel, for the respondent, concedes that, on
the basis of the psychiatric evidence, the Court would be
satisfied to the requisite standard that the respondent is a
serious danger to the community without a supervision order
being made.

It is a positive step that the respondent recognises that he
requires the assistance of a supervision order, not only
because of the benefit to the community, but also for the
benefits it will provide to him which in turn should assist in ensuring that the risk to the community from
his release is reduced.  The evidence of the three
psychiatrists is acceptable and cogent and satisfies me to the
high degree of probability that is required under the Act that
the respondent's moderate to high risk of sexual re-offending,
unless appropriately supervised, is an unacceptable risk in
terms of section 3 subsection 2 of the Act.

In deciding whether a continuing detention order, or a
supervision order is made, section 13 subsection 6 of the Act
gives paramount consideration to the need to ensure adequate
protection of the community.  In addition, the Court must
consider whether adequate protection of the community can be
reasonably and practicably managed by a supervision order and
requirements under section 16 of the Act can be reasonably and
practicably managed by Corrective Services officers.

The form of the order which I am proposing to make was propounded before me both by the applicant and the respondent as to the individual conditions on which the supervision order should operate.  In light of the psychiatric evidence and the
submissions that have been made both on behalf of the
applicant and the respondent, I am satisfied that appropriate
conditions can be formulated for a supervision order that will
address the need to ensure the adequate protection of the
community, and that the requirements of the proposed
supervision order can be reasonably and practicably managed by
Corrective Services officers.

I am satisfied that a supervision order should be made until 3 December 2020 on the conditions which are set out in the amended draft order that I have settled with counsel in the course of this proceeding.  I therefore make an order in terms of the amended draft which is initialled by me and placed with the file.

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