Attorney-General for the State of Queensland v Eades

[2011] QSC 408

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Eades [2011] QSC 408

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
RAYMOND BARRY EADES
(respondent)

FILE NO:

BS7253 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application for contravention of supervision order

DELIVERED ON:

20 December 2011 

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2011

JUDGE:

Mullins J

ORDER:

Upon the court being satisfied that the respondent has contravened requirements of the supervision order made by Justice P Lyons on 30 November 2010 (the supervision order): 
1. The supervision order is rescinded.
2. The respondent be detained in custody for an indefinite term for control, care or treatment.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER MATTERS – where the respondent released under a supervision order made under Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where respondent befriended woman whose adult son was married with three boys in that family unit – where respondent met the son and his family and went on outings with and had visits with the son and his family – where the respondent did not disclose to an authorised Corrective Services officer that he was having contact with the boys of that family – where the respondent contravened the condition of supervision order not to establish or maintain contact with children under 18 years except with the prior written approval of a corrective services officer – whether the respondent could satisfy the court that the adequate protection of the community could, despite the contravention, be ensured by the existing supervision order continuing or with amendments to address the conduct that resulted in the contravention

Dangerous Prisoners (Sexual Offenders) Act 2003, s 11, s 22

COUNSEL:

A D Scott for the applicant
B H P Mumford for the respondent

SOLICITORS:

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

HER HONOUR: On 30 November 2010 Justice P Lyons was satisfied that the respondent was 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) and made a supervision order under the Act which enabled the respondent to be released from custody on 3 December 2010 but under the supervision of an authorised Corrective Services officer on the conditions of the supervision order for a period of 10 years.

The respondent, who was born in 1955, has a lengthy criminal history of both sexual offences and dishonesty offences dating from 1973.  The offences which resulted in the respondent's most recent period in custody prior to the supervision order were seven counts of indecent treatment of children under the age of 16 years and two counts in relation to a child under the age of 12 years.  Initially an indefinite sentence was imposed, but in 2008 a 10 year sentence of imprisonment was imposed instead. 

The respondent suffers from nonexclusive homosexual paedophilia which is of lifelong duration and which has involved a very large number of victims with multiple occasions of recidivism.  There has been very little time that the respondent has spent outside prison since the age of 19 years.  The respondent has an antisocial personality disorder with psychopathic personality features. 

His past conduct has been described as cunning and deceitful.  His sexual offending has typically involved his befriending the parent or parents or guardian of a child and then grooming both the parents and the child prior to the commission of the offence. 

Since the respondent's release under the supervision order, he has been convicted of two offences against section 43A of the Act.  The respondent pleaded guilty to the first offence on 25 March 2011.  That offence was a breach of a condition of the supervision order that he not knowingly associate, or have contact with, anyone convicted of a sexual offence against children and was particularised as telephone calls between 18 and 28 January 2011 with a prison inmate who was convicted of a sexual offence against children.  The respondent was fined $350. 

The respondent also pleaded guilty to the second offence on 13 May 2011.  The offence was breach of a condition of the supervision order that he must respond truthfully to inquiries made by a Corrective Services officer about his activities, whereabouts and movements generally. 

On 15 March 2011 the respondent gave three different versions as to his whereabouts on 12 March 2011.  The electronic monitoring to which the respondent has been subject under the supervision order recorded that he had left the Wacol compound where he was residing at 6.30 a.m. on that day and returned at 6 p.m..  When interviewed by police, the respondent made full admissions that he had not responded truthfully about his movements.  For this second offence he was fined $500. 

On 9 May 2011 the respondent disclosed to a Corrective Services officer that he was visiting a woman friend of mature years, to whom I will refer as J.  She lived with her 29‑year‑old son, and the respondent disclosed that he visited J and fixed her car when required.  When asked whether she had any children visit the residence or live in the proximity of her residence, he responded that he did not know. 

J dropped the respondent back to the Wacol precinct on 18 May 2011.  The registration of her vehicle was noted. 

In early June 2011 a Corrective Services officer received a telephone call from J's son that provided information that was referred to the police.  Statements were then taken from J's son and his wife on 20 June 2011.  That described up to six occasions on which the respondent was present at the same place as J's son, his wife and their three boys (the three boys) who were born in 1998, 2003 and 2006. 

The applicant filed an application in this proceeding on 22 June 2011 in reliance upon the information gained from the police investigation seeking orders pursuant to section 22 of the Act on the basis that the respondent had contravened three conditions of the supervision order and particularly the condition (xxvii) which was “not establish or maintain any supervised or unsupervised contact with children under 18 years of age except with prior written approval of an authorised Corrective Services officer.”

The applicant seeks the supervision order be rescinded and that the respondent be made the subject of a continuing detention order under the Act. 

On 22 June 2011 the respondent was detained in custody until a final determination of the Court under section 22 of the Act, or such earlier order of the Court.

On 11 August 2011 it was ordered that the respondent undergo examinations by psychiatrists Dr Harden and Dr Beech for the purpose of preparing independent reports in accordance with section 11 of the Act.

The applicant's application was heard on 16 December 2011. On the issue of whether the contravention alleged by the applicant was proved, oral evidence was given by J's son, his wife and the respondent, each of whom had sworn an affidavit. The respondent conceded that he had contact with the three boys that was in breach of condition (xxvii). It is still necessary to make findings about the extent of the contact that the respondent had with the three boys as that will affect the determination of the issue of whether the supervision order should be rescinded. It was essential that the respondent gave evidence himself because otherwise he would not have been able, in the circumstances, to endeavour to discharge the onus under section 22(2) of the Act.

I found that both J's son and his wife gave a credible narrative of their encounters with the respondent.  It is relevant that they were first asked to recall events by the police for the purpose of their statements within a month of those events occurring.  There were some details on which there were differences in their evidence, and in respect of which the respondent also had difference in detail, but that is not surprising when J's son and his wife were asked to recall minute details about the encounters with the respondent and their conversations with him. 

Although the respondent did disagree with the respective recollections of J's son and his wife about specific statements attributed in conversations that he participated in with them, it became apparent from the respondent's version of the events that in most instances the conversation was generally of similar effect to that which J's son and his wife gave evidence about, to the extent that either or both of them had a recollection of the particular conversation. 

A good example in the evidence about discrepancies is the discussion about the possible purchase of a coffee machine.  J and the respondent were visiting the house of J's son and his wife when J's son's wife was looking at the junk mail.  J's son's wife pointed to a coffee machine in the brochure and said that she wanted to get one for her husband.  The respondent was present, but she did not hear what the respondent then said.  J's son says that the respondent said to J's son's wife, "Would you like one of those?"  The respondent disputes that he said those words, but concedes that J and J's son's wife said something to the effect they were going to pitch in and buy it and that the respondent then said, "Well, I'd throw some money in too". 

Whether the respondent was offering to buy the item or to contribute to its purchase, the gravamen of his conduct is the same for the purpose of this application.  It is conduct which shows that he was attempting to befriend J's son and his wife. 

Over a period of two to three weeks from late May to early June 2011 the respondent had contact with the three boys in the presence of one or both of their parents and/or J, but the respondent at no point in that period sought approval from a Corrective Services officer for that contact, as required by condition (xxvii). 

The contact can be summarised in respect of six occasions.  The first was when the respondent was working on J's other son's car at J's place when he was also in the company of X, a convicted sex offender who has been identified as being present on this occasion by J's son's wife, and that is not disputed by the respondent.  J's son, his wife and the three boys dropped in to visit J and met the respondent and X. 

The second occasion was another visit by J's son's family to J's home when the respondent arrived.  J's son, his wife and the three boys went to a nearby hotel for lunch.  The respondent joined them and played "the pokies" with J's son's wife while J's son looked after the three boys.  J's son's wife said that the respondent bought one of her sons a soft drink, although she conceded she did not actually see her son in the company of the respondent.  The respondent accepts that he gave J's son's wife money to pay for a drink for her son.  Even on that basis the conduct of the respondent is relevant for the purpose of this application, as it is another instance of the respondent seeking to ingratiate himself with J's son's family. 

The third occasion was when J and the respondent attended at J's son's home when the adults talked for two or three hours with the three boys coming in and out of their presence.  The respondent concedes that there was an occasion when he and J visited J's son's home and they talked about a prospective visit to Nambour.  The purpose of the proposed trip was that the respondent was looking for a property in the area of Nambour to relocate to and J was expressing interest at relocating with the respondent. 

The fourth occasion was the trip to Nambour.  The respondent and J went in J's car.  J’s son's family travelled in their own car.  On arrival at Nambour, they all went to a cafe and the respondent ordered drinks and cake for the three boys, when ordering the drinks for the adults.  He paid for these refreshments.  On the trip there was a visit to a park where the group had a barbecue and the three boys went fishing.  The respondent accepts that he helped set up one of the fishing rods for one of the boys.  There is no suggestion that he was with any one of the boys by himself, as the evidence of J's son and his wife is that the adults were together and could see the three boys. 

After the trip to Nambour there was a further two occasions when the respondent turned up at the house of J's son and his wife.  On each occasion the three boys were there.  On one of those occasions the respondent was accompanied by the convicted sex offender X.  On another occasion the respondent visited with J and brought KFC for dinner. 

The summary of this evidence in relation to the six occasions on which the respondent was present when the three boys were also present satisfies me that the respondent behaved as if he were a friend of J's family extending to J's son's family.  

In the respondent's affidavit filed by leave on 16 December 2011 he described five occasions on which he was in the presence of the three boys with the parents and/or J.  He stated in paragraph 18, "I did not think that I was contravening my order as my contact was always in the presence of adults ‑ either [J's son, his wife or J].  I made sure there was an adult around when I was in the presence of the children.  I thought that I would not breaching my order if my interactions with the children were supervised or in the presence of adults". 

In cross‑examination the respondent confirmed his explanation for why he did not think he was breaching the condition of the supervision order by being present at the same time as the three boys, or participating in activities with the three boys such as watching them fishing at Nambour, or having drinks and cake at the cafe in Nambour with them.  He said that he did not understand the "half of it", referring to the supervision order.  He then said, "Well, being supervised means being present with adults.  That's what I done and I still got in trouble".  When it was put to him that the conduct that was regulated under the supervision was both supervised or unsupervised contact with children under the age of 18 years, he responded, "Well, I didn't read that".  The respondent also conceded that during the period that he saw the three boys, he was asked by Corrective Services officers whether he had contact with children under 18 and he said, "No".  He explained at transcript 1‑49, "I denied it.  Well, why ‑ well, I didn't.  If you have contact with a child, I'm there with their parents.  I'm talking to the parents, not some kid". 

I am satisfied that the applicant has discharged the onus it bears to prove the contraventions of the three conditions of the supervision order as a result of the visits and outings that the respondent undertook at which the three boys were present.  He contravened condition (xvi) as he has admitted failing to respond truthfully to inquiries by Corrective Services officers about whether he was having contact with children.  His contravention of condition (xxvii) was very serious because there were six occasions over a period of two to three weeks where he had supervised contact with the three boys without prior approval of a Corrective Services officer. 
On two of these occasions the convicted sex offender X was present.  The respondent offered an explanation for X's presence which was that X followed him.  The respondent was not cross‑examined about the circumstances which he offered as the explanation of X's presence.  Irrespective of any explanation, the condition was breached.

The condition (xxxii) was breached by the presence of X with the respondent on the two occasions I have identified. 

Both Dr Harden and Dr Beech had interviewed the respondent in 2010 for the purpose of the proceeding before Justice P Lyons.  Dr Harden interviewed the respondent again on 18 October 2011 for the purpose of the contravention proceeding.  His report dated 6 December 2011 is Exhibit 3.  Dr Beech interviewed the respondent on 12 October 2011.  His report dated 2 December 2011 is Exhibit 2.  Both Dr Harden and Dr Beech gave additional oral evidence. 

Although their reports were given on the basis of the police statements taken from J's son and his wife and what was conveyed by the respondent in his interviews, the nature of the contraventions about which Dr Harden and Dr Beech expressed their opinions in their written reports was sufficiently similar to the contraventions as clarified by the evidence in this proceeding, and no issue was taken about the factual basis on which both psychiatrists expressed their opinions about the respondent's conduct. 

It was particularly helpful that Dr Harden was available to listen to the oral evidence of J's son, J's son's wife and the respondent before he gave his oral evidence. 

Dr Harden in his written report described the respondent's association with children without the permission of the authorities in circumstances where he had ingratiated himself with J, who was the grandmother of the three boys, in these terms: "This behaviour appears to be consistent with his previous pattern of offending behaviour where he would often ingratiate himself with families or caregivers prior to committing child sexual offences against children." 

The respondent had undertaken HISOP before his release under the supervision order for which he had to prepare a relapse prevention plan.  He also undertook counselling with two psychologists after his release under the supervision order. 

The most recent counselling before his return to detention was with psychologist Ms Sky.  Ms Sky identified a number of areas of further psychological intervention in her report dated June 2011 and listed 17 specific areas for a further treatment plan for the respondent. 

Dr Harden expressed the opinion that the respondent's association with the three boys that was the subject of this contravention proceeding shows that HISOP was ineffective and that he was not adhering to his relapse prevention plan because if he were, he would have avoided contact with a family with children.  From a psychiatrist's perspective, Dr Harden considered that the respondent's contravention by associating with a family with children was very serious. 

Dr Harden considered that close surveillance would assist in monitoring the respondent, if he were to continue under the supervision order, but there was no basis to believe that the treatment of the respondent to date including the counselling that he had subsequent to release under the supervision order was successful in reducing the risk. 

Dr Harden was of the opinion that the respondent’s ongoing, unmodified risk of sexual re‑offence in the community was high.  Dr Harden recommended that the respondent continue with ongoing therapy either individually with a psychologist or a group maintenance sexual offender program. 

Dr Beech was even harsher in his opinion of what the contravention by the respondent by associating with a family with children meant.  He stated in his written report, "Within months of release, despite two other contraventions, Mr Eades has been found in the process of befriending a family with three young children.  This is in keeping with his pattern of other offences against children.  The statements of [J's son's wife], in my opinion, point to the grooming of the family and the children and I believe they can reasonably be seen as the prelude to further offences.  Mr Eades' explanations are glib and disingenuous, they speak to insightless, if not outright deceptive behaviour.  They go completely against his relapse plan.  The allegations are in keeping with the high risk scenarios and probably did occur when he was unhappy at times.  They may present as unconscious attempt at sabotage.  Ultimately I believe the contravention, if true, is inexcusable.  Importantly he seems to have hidden the relationship from QCS officers despite the supervision order". 

In oral evidence Dr Beech stated in relation to the contravention, if it were characterised as part of a deliberate grooming pattern, as follows (at Transcript 1-57): "If you think it is part of a deliberate grooming pattern my opinion is that it is a very serious contravention, it shows that he is at a very high risk of re‑offending in the community, and I am not sure what can be done at the moment to reduce that risk."

Dr Beech dealt with the significance of the respondent failing to inform Corrective Services officers that J had grandchildren who would visit when he was at J's home.  Dr Beech stated in his oral evidence (at Transcript 1-59), "If he is not open with that, then there is no way of dealing with it in therapy so that you can have strategies to manage it.  If he is not open with Corrective Services officers about it, there is no way they can advise him, increase the monitoring system; it all then becomes a need to increase surveillance on Mr Eades to catch him out if he is contravening." 

In view of this contravention, Dr Beech thought that the respondent may benefit from undertaking HISOP again, because he would be directed in the program to address the circumstances of this contravention that would mean it would become a different program for him. 

I find that the contravention in associating with J's family in that way that brought him into contact with the three boys was not accidental conduct.  It had all the hallmarks of grooming behaviour, as the respondent did not disclose his contact to Corrective Services officers despite being asked questions about his activities during the relevant period which gave him the opportunity to disclose the contact with children under the age of 18 years. 

I accept the opinions of both Dr Harden and Dr Beech as to the seriousness of this contravention in all the circumstances.  For a supervision order to work there has to be support and monitoring and opportunities for continuing treatment provided by Corrective Services officers, but there has to be acceptance of responsibility by the person who is subject to the supervision order for complying with the requirements of the supervision order which are directed at reducing the risk of sexual re‑offending. 

I reject the respondent's explanation that he did not understand the requirements of condition (xxvii) that he was not to establish or maintain any supervised or unsupervised contact with children under 18 years of age except with prior written approval of an authorised Corrective Services officer. 

His claim for lacking an appreciation that the condition was also directed at supervised contact was inconsistent with his legalistic approach to the interpretation of the condition.  His lack of compliance with the condition indicates a lack of responsibility on his part for the observance of the conditions of the supervision order.  His explanation that he did not understand the condition is inconsistent with his rationalisation that he was not in breach of it at the time that he was encountering the three boys. 

Under section 22 of the Act the respondent bears the onus of proving on the balance of probabilities that the adequate protection of the community can, despite the contravention of the existing supervision order, be ensured by the continuation of the existing order or by the continuation of the existing order with amendments made pursuant to section 22(7) of the Act.

The respondent's counsel pointed to the advent of GPS monitoring which would be more extensive than the electronic monitoring to which the respondent was subject at the time he committed the contravention.  GPS monitoring still is largely retrospective and only identifies where the offender has been and not the persons with whom the offender has been associating. 

In light of the seriousness of the respondent's contravention of condition (xxvii) against the background of his previous sexual offending which contravention I characterise as grooming behaviour of a nature that has been a prelude to sexual offending by the respondent in the past coupled with the lack of candour in his dealings with the Corrective Services officers about his contact with the three boys, I am unpersuaded that his high risk of re‑offending can be adequately addressed by the existing supervision order, even if amended to provide for GPS monitoring. 

It is also apparent from the psychological reports and psychiatric reports in evidence that was placed before the Court in this contravention proceeding that there are avenues for further treatment of the respondent if detained in custody. 

The order that I make is: Upon the Court being satisfied that the respondent has contravened requirements of the supervision order made by Justice P Lyons on 30 November 2010(the supervision order):

1.   The supervision order is rescinded.

2.   The respondent be detained in custody for an indefinite

term for control care or treatment.

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