Attorney-General for the State of Queensland v Cullen

[2010] QSC 202

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Cullen [2010] QSC 202

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
ALFRED FRANK CULLEN

(respondent)

FILE NO:

BS230 of 2010

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

9 June 2010 (ex tempore reasons)

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 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 serving 12 years’ imprisonment for sexual offences involving children – where applicant seeking orders pursuant to section 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 – where supervision order made for a period of 5 years

Dangerous Prisoners (Sexual Offenders) Act 2003, s 13

COUNSEL:

B H P Mumford for the applicant

K Prskalo for the respondent

SOLICITORS:

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

HER HONOUR: This is an application under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act)for orders that the respondent either be detained in custody for an indefinite term for care, control or treatment, or be released from custody subject to the conditions that the Court considers appropriate and that are stated in the order.

Before the hearing took place today, considerable work had
been undertaken by the Attorney-General and the respondent and
their lawyers in considering what orders were appropriate to
make in relation to this application.

I had before me the benefit of three very thorough psychiatric
assessments of the respondent.  Mr Mumford of counsel for the
Attorney-General conceded that the psychiatrists' opinions
support the making of a supervision order rather than a
detention order.

Ms Prskalo of counsel on behalf of the respondent also
appropriately conceded that there was acceptable and cogent
evidence of sufficient weight that would justify the Court
that the respondent is a serious danger to the community in
the absence of a division 3 order, but then submitted that
adequate protection of the community can be ensured by
ordering that the respondent is released from custody subject
to a supervision order.

Appropriately, the lawyers had considered the terms of a
proposed supervision order and obtained further input from the
psychiatrists on that before the hearing commenced.

Each of the psychiatrists then gave short evidence in relation
to the two issues that remained in contention.  They were the
period of the supervision order and whether or not the
supervision order should contain a condition that the
respondent not visit public parks without the prior written
approval of an authorised Corrective Services officer.

After considering the evidence relied on by the
Attorney-General for the purpose of this application and the
further oral evidence and the submissions that had been made
in writing by both counsel, I am satisfied that the appropriate period for the supervision order in this case is five years and that it is unnecessary to have the condition that was in the proposed order about a prohibition on visiting public parks without the prior written approval of an authorised Corrective Services officer.

In order to make the orders that I propose making in this
matter, it is necessary to give some history of the respondent
and his offending and to refer briefly to some aspects of the
psychiatrists' reports.

The respondent is 61 years old.  He was convicted in 1998
after pleading guilty to 20 child sex offences.  He was

sentenced to 12 years imprisonment.  That was his first
imprisonment for sexual offending.

The nature of his offences is relevant to the risks of future
offending.  There were three sets of offences.  The first set
was committed between 1977 and 1984 and involved a boy who
was aged between eight years and 14 years over that period.
The respondent met the boy through a community youth group
where he was a supervisor.  He was trusted by the boy's
parents to take care of the boy and was permitted to undertake
activities with the boy.  Over the period of time, indecent
acts were committed by the respondent against the boy.  They
involved masturbation and oral and anal sex.  The relationship
ended when the boy refused further contact.

The second set of offences involved a 15 year old boy whom the
respondent met at a caravan park where he was a groundsman.
The respondent became friendly with the boy's mother and,
again, another relationship of trust was involved between the
respondent, the boy's mother, and the boy.  When the boy's
mother left the caravan park with her other children, the boy
stayed with the respondent.  The nature of offending was the
same as with the first complainant.

The third set of offences involved a boy aged between 12 to
15 years old and these offences were committed over the period between 1988 and 1991.  Again, the boy had been entrusted to the respondent's care by the boy's parents.  The nature of the

offences was similar to the offences committed against the other complainants.  The offending activity ceased when the respondent met his adult partner.

It should be noted that the respondent's offending activity
occurred at a time when the respondent had hidden his
homosexuality.  It is apparent from the reports that upon the
respondent becoming open about his homosexuality and engaging
in relationships with adult males, his interest before he was
imprisoned was, on his reporting, confined to adult males.

It is relevant in considering his risk of future offending
that his offences or offending activity had ceased prior to
his being charged with the offences.  He will serve the entire
period of the 12 years imprisonment.  His discharge date is
25 June 2010.

In the latter part of his imprisonment, he has undergone the
preparatory Sexual Offender Treatment Program.  He then
underwent the Medium Intensity Sexual Offender Program, and
then a Sexual Offender Maintenance Program.  He has
satisfactory exit reports from these programs.  It is
recommended by the psychiatrists that the respondent build on
the benefits that he has gained from the sexual offender
treatment programs within the prison by engaging in a
Community Sexual Offender Maintenance Program.

The respondent's age and medical problems also are relevant to
gauging the risk of reoffending.  He has emphysema and heart
problems.

Dr Beech assessed the respondent on 12 March 2010.  He
expressed the opinion that the nature of the respondent's
offending and the persistence of the offending over many years
combined with the respondent's description of having formed an
attraction to young boys indicate that the respondent has the
sexual deviance of homosexual paedophilia.  Dr Beech noted,
however, that the respondent is not exclusively attracted to
young males and has been able to form adult sexual
relationships.

There is nothing in the history or the assessment that
Dr Beech undertook to indicate that the respondent has a
personality disorder, although there may be some dependent
traits.  Dr Beech noted that the respondent is not generally
antisocial or psychopathic.  There is no mental illness and no
history of substance abuse.

Overall, Dr Beech assessed the risk of reoffending in the
moderate range and expresses the opinion that the ability
prior to the respondent's imprisonment of his being able to
form an adult homosexual relationship was a protective factor
at that time.

Dr Beech suggests that the risk on release for the respondent
is loneliness and that it is important that the respondent put
supports in place to meet the risks that he faces from being
unable to meet his social needs and the possibility of
loneliness.  Ongoing counselling and support in the community
are, therefore, essential.  Dr Beech recommends that the
respondent participate in a maintenance program in the
community and follow this with individual counselling.  It is
imperative that the respondent not have unsupervised contact
with male children which would extend to online and internet
contact.

Dr Grant expressed the opinion originally that the supervision
order should be for a minimum of five years but preferably for
10 years.  On giving further oral evidence, Dr Grant accepted
that the need for a supervision order to last as long as
10 years is only for the purpose of addressing the low grade
long-term risk that would continue to be present for the
respondent having regard to his history.  All psychiatrists
were of the view that the real risk of reoffending would be
within the first five years of the release from prison.
The success of the proposed supervision will obviously be an
important factor in ensuring that that risk is minimised.
Dr Beech and Dr Lawrence considered a supervision order for
five years would be appropriate.

In relation to the condition that was proposed by the
Attorney-General in relation to parks, it appears unnecessary

in view of the other conditions in the proposed supervision
order.  The respondent's history of offending is in relation
to grooming a boy who comes within his social circle and with
whom he has sustained contact.  Obviously the Attorney-General
was concerned that such a situation could arise if the
respondent met a boy in a public park.

There are, however, other conditions in the proposed
supervision order that are more directly addressed to social
contact with boys under the age of 18 years.  For example,
proposed condition 25 is that the respondent not establish or
maintain any supervised or unsupervised contact with male
children under 18 years of age, except with prior written
approval of an authorised corrective services officer.  Any
attempt by the respondent to speak with a boy in a public park
would immediately put him in breach of his supervision order.

The respondent has to discuss his activities with a Corrective
Services officer and that will assist in the Corrective Services ascertaining whether the respondent is frequenting a place where he may be able to meet boys and to discuss with the respondent the identity of those persons with whom he has socialised in the preceding period and expects to socialise in the prospective period after meeting with the authorised Corrective Services officer.

The psychiatrists did not support the inclusion of that

condition in relation to the public park because it would be

so easy to breach inadvertently and where there was no risk of

any offending being committed by the respondent.  Dr Beech

also made the point that it is important that the respondent

be aware that he must be vigilant for not having contact that

is unauthorised with any 18 year old or younger boy at any

place, not just public parks.

The evidence of the 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 low

risk of sexual offending, unless appropriately supervised, is

an unacceptable risk in terms of the Act.

In light of the psychiatric evidence 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 a supervision order

should be made for a period of five years.

I am satisfied that the period of five years will be a

sufficient period to ensure the adequate protection of the

community from the risks of reoffending that have been

identified in the material in relation to the respondent.

I should add that, although Dr Beech estimated the risk of

reoffending as moderate, both Dr Lawrence and Dr Grant

estimated the respondent's risk of sexual reoffending in terms

of being a moderate to low risk.

I therefore make an order in terms of the amended draft

initialled by me and placed with the file.

...

HER HONOUR:  Mr Cullen, I am not sure how much - please stand.

Mr Cullen, I'm not sure - are you right?

RESPONDENT:  Yes, right, sorry.

HER HONOUR:  I'm not sure how much you understood of what went

on today, but I have made the supervision order, but it really

requires a lot of hard work on your part to comply with the

conditions and to make the most use of the Corrective Services

Corrective Services Officer who will be assigned to liaise

with you and to help you in the transition from your

imprisonment to the community.

RESPONDENT:  Yes.

HER HONOUR:  You will find it is going to be a big change for

you after having been in prison for 12 years to adjust to the

community and you are going to have to familiarise yourself

with the terms of the supervision order and make sure that you

abide by them to the letter, but to the spirit as well.  All

right?

RESPONDENT:  Yes.

HER HONOUR:  That's what Corrective Services and the Court has

found, that some men in your position have become a bit cute

and they decide - they look at the order and they decide, "Oh,

well, McDonald's wasn't mentioned, I can go to McDonald's."

Well, if you are planning to go to McDonald's, can I tell you

that that is covered by your order.  You cannot visit any

premises where there is a dedicated children's play area or a

child minding area, so you have just got to be really careful.

Now, I am sure your lawyers will spend a little bit of time

telling you about the terms of the order as well.

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