Attorney-General for the State of Queensland v Friend

[2010] QSC 408

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Friend [2010] QSC 408

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
ROY FRIEND

(respondent)

FILE NO:

BS883 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application for review

DELIVERED ON:

1 November 2010 (ex tempore reasons)

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 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 imprisoned for sexual offences against children – where respondent released from prison subject to supervision order made pursuant to  Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) – where respondent breached supervision order and was returned to prison under continuing detention order – where applicant seeks a review of continuing detention order pursuant to s 27 of the Act – whether 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

Dangerous Prisoners (Sexual Offenders) Act 2003, s 27, s 30

COUNSEL:

J B Rolls for the applicant

S M Ryan and L S  Reidy for the respondent

SOLICITORS:

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

HER HONOUR: The Attorney-General applies under section 27 of
the Dangerous Prisoners (Sexual Offenders) Act 2003 (the
Act) that the continuing detention of the respondent be
reviewed.

The respondent was first released under a supervision order
made under the Act in June 2006 (Attorney-General for the
State of Queensland v. Friend [2006] QSC 131).

In November 2007 the respondent breached those conditions.
The supervision order was rescinded by Acting Justice Skoien
on 27 February 2008 who ordered that the respondent be
detained in custody under the Act (Attorney-General for the
State of Queensland v. Friend [2008] QSC 27). That continuing
detention order was reviewed and on 2 June 2009 Justice
Daubney ordered that the respondent continue to be subject to
the detention order made on 27 February 2008 (Attorney-General
for the State of Queensland v. Friend [2009] QSC 135).

The application for the next review of that order came before
me on 29 April 2010.  At that stage psychiatrist Professor
James, who had examined the respondent on three previous
occasions, examined the respondent on 15 March 2010 and
provided a report dated 20 March 2010.  Although by March 2010
the respondent had made significant progress, because of his
treatment within prison, Professor James strongly recommended
that the treatment continue in the prison for a further six
months.  The respondent had sufficient insight to give
instructions to act on that recommendation and, at his
request, the review hearing was adjourned from 29 April 2010
until today.

The respondent is 57 years old.  He has a significant criminal
history consisting of offences against children that are
summarised in [2008] QSC 27 at paragraphs 4 to 7. The last
series of offences for which the respondent was convicted on
14 April 2003 concerned primarily boys aged between 14 years
to 16 years.  In general terms, the evidence against the
respondent in relation to that offending showed a process of
the respondent befriending and grooming the boys who were the
victims of his offences.

The reason that the respondent wanted the adjournment in April
2010 was to enable him to continue with the treatment he was
receiving within the prison system from psychologist
Mr Whittingham.

Mr Whittingham saw the respondent on 14 occasions between 24
May and 7 September 2010.  The respondent has achieved a
clinically significant improvement in his post-traumatic
depression symptomatology.  Mr Whittingham has provided a
report dated 24 September 2010 which is significant in the
sense that it is the report that was also before psychiatrists
Professor James and Dr Harden, who have given updated reports
for the purpose of this review hearing.

Mr Whittingham stated in his report, "Mr Friend continues to
appear motivated to participate in psychological treatment

and his report and his responses on psychological tests
continue to suggest an acknowledgment of several areas of
important problems and strong views about continuing
professional support.  Treatment will continue to be
challenging with Mr Friend due to his long-term risk,
personality disturbance and vulnerability for developing
depressive illness and post-traumatic symptoms."

Mr Whittingham recommended that it is critical that further
support be available to the respondent via participation in
the Sex Offenders' Maintenance Program at two yearly intervals
for review of his relapse prevention plan and benefits of
group process and that he continue to receive community
supervision.

Mr Whittingham identified that the respondent will likely
continue to require long-term multi-disciplinary treatment,
including psychological treatment and support and psychiatric
treatment and support, to assist with ongoing management of
his complex mental health and sexual offending needs and
risks.

Mr Whittingham's overall conclusion, for the purpose of this
report, was that there was evidence of a reduction in both
stable and acute dynamic risk, according to the SONAR, and in
Mr Whittingham's opinion an overall adjustment of his level of
risk to moderate/high due to, "reduced attitudes tolerant of
sexual assault, improved general self-regulation, and reduced
negative effect and anger and hostility, substance use and
victim access as outlined."

Whilst in prison, under the continuing detention order, the
respondent has been treated for symptoms of a depressive
disorder by a psychiatrist, Dr Timmins.  Dr Timmins noted that
the respondent had been preoccupied with his own experience as
a victim of child sex abuse.  Dr Timmins has stabilised the
respondent's mood symptoms with medications and recommends
continued medication and follow-up treatment for the
respondent, upon his release from the prison system, with a
psychiatrist.

For the purpose of the review, the applicant relies on the
earlier psychiatric reports obtained for the purpose of
dealing with the respondent under the Act and, in particular,
relies on the reports obtained from Professor James and
Dr Harden for the review that was due to take place in April
2010 and on their updated assessments of those opinions for
the purpose of the review hearing today.

Professor James interviewed the respondent on 27 September
2010.  Previously, Professor James had diagnosed the
respondent as suffering from two interrelated conditions,
paedophilia and borderline personality disorder, and that it
was for the latter condition that Professor James recommended
continued therapy, in order to regulate the respondent's
propensity for sexual re-offending.  Professor James was of
the opinion that the main risk for the respondent in acting
out his paedophilic tendencies was inversely related to the

degree to which he attained a stable improvement in his
personality disorder.

In the addendum psychiatric report, dated 15 October 2010,
Professor James expressed the opinion that the respondent had
assimilated and consolidated the changes brought about by the
treatments that had continued in the prison system to a
sufficient degree for it to be no longer necessary for the
treatment to continue whilst he was in prison, and that it was
reasonable to recommend that the risk of re-offending now be
managed in the community, and that it would be necessary for
the supervision order to be in place for at least five years,
provided there was a supervision order that restricted the
respondent's contact with young males and allowed for
continuing psychological treatment and continuation of the
antidepressant/antianxiety medication that the respondent has
been prescribed within the prison system.

Professor James put the respondent's risk of re-offending as
moderate within the first year to 18 months but should the
respondent provide evidence of successful rehabilitation,
including strict adherence to the terms of the supervision
order, then the risk of re-offending will decrease
progressively.

Dr Harden had been prepared to support a supervision order at
the review hearing on 29 April 2010, although did suggest that
it be for a period of approximately ten years.  At that stage
Dr Harden diagnosed the respondent as meeting the criteria for
paedophilia, sexually attracted to males, non-exclusive type,
and a diagnosis of personality disorder not otherwise
specified with predominantly borderline personality traits.

Dr Harden also recommended that the respondent continue to
participate in an appropriate sexual offender treatment
maintenance program as a group and individual process in the
community.

Dr Harden, in his updated report, prepared after interviewing
the respondent on 5 October 2010, maintains the same diagnosis
and continues with the recommendation that the respondent
could be released from incarceration, provided he were
monitored in the community by means of a supervision order.

Dr Harden is of the opinion that the respondent's future risk
of sexual reoffence continues to be high if released into the
community without appropriate monitoring support and
therapeutic intervention.

The respondent himself accepts that he is a serious danger to
the community in the absence of a Division 3 order, but seeks
to be released under a supervision order.

The submissions of the applicant acknowledge the considerable
improvement in the respondent since the detention order was
continued on 2 June 2009, but note that the psychiatric
evidence supports the making of a Division 3 order, but that
the intensive supervision and restriction on the respondent's

activities that is recommended by the psychiatrists should be
met by a supervision order.

I have considered the terms of the supervision order that was
proposed by both the applicant and the respondent.  It is very
strict but it reflects the recommendations of the psychiatric
opinion.  I propose to impose it for a period that expires on 2 June 2016.  That is consistent with the recommendation of Professor James.

The evidence of Professor James, Dr Harden and Mr Whittingham
is acceptable and cogent and satisfies me to the high degree
of probability that is required under the Act that the
respondent's high risk of sexual re-offending, unless
appropriately supervised, is an unacceptable risk in terms of
section 30(2) of the Act.

Under section 30(4) of the Act, in deciding whether to make a
continuing detention order or a supervision order, the
paramount consideration is the need to ensure adequate
protection of the community.  In light of the psychiatric
evidence and psychological 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.

I, therefore, make an order in terms of the amended draft
initialled by me and placed with the file.

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