Attorney-General for the State of Queensland v Georgetown

[2023] QSC 272

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Georgetown [2023] QSC 272

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
GEORGETOWN, James Vincent

(respondent)

FILE NO:

BS No 9178 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED EX TEMPORE ON:

9 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2023

JUDGE:

Cooper J

ORDERS:

Orders as per draft.

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 respondent was previously released from custody subject to a supervision order – where the respondent contravened the supervision order – where the Attorney-General brings an application pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether the court should rescind the supervision order and order that the respondent be detained in custody for an indefinite period of care, control, or treatment – whether the court should amend the supervision order and release the respondent back into the community subject to the requirements of that order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 22

COUNSEL:

J Rolls for the applicant

T S Carlos for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

1. This is an application by the Attorney-General for the State of Queensland in respect of the respondent James Vincent Georgetown.

2. Mr Georgetown was previously released from custody subject to a supervision order made by Crowley J on 19 September 2022. That supervision order provided that it would expire on 27 September 2029.

3. This application arises because of alleged contraventions of the supervision order by Mr Georgetown. Mr Georgetown was returned to custody on 24 February 2023 following the alleged contraventions.

   Present application

4. The application is brought pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (Act).

5. The Attorney-General has applied for two alternative forms of relief:

   (a)first, that pursuant to s 22(2)(a) of the Act, that the Court rescind the supervision order and that the respondent be detained in custody for an indefinite period of care, control, or treatment;

   (b)alternatively, that pursuant to s 22(7) of the Act, the Court amend the supervision order as it considers appropriate and that Mr Georgetown be released back into the community subject to the requirements of that order.

6. However, as the matter has been argued before me, no amendment of the supervision order is proposed in the event that I am satisfied that Mr Georgetown ought to be released on that order.

7. The process of determining an application under s 22 of the Act involves two steps. The first requirement is that the Court consider and determine whether Mr Georgetown contravened the supervision order in the manner alleged. The Attorney-General bears the onus on this first question. The second step is, if a contravention is proved, the discretion then arises for the Court to rescind or amend the supervision order as appropriate. On this second stage, the onus shifts to Mr Georgetown to satisfy the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the supervision order in its existing form or with some amendment.

   Alleged contraventions

8. The requirements the respondent is alleged to have breached are:

   (a)Condition 14, which requires that a Corrective Services officer has power to tell the subject of the order to stay at a place—for example, the place the respondent lives—at particular times, called a curfew direction;

   (b)Condition 21, which provides that Mr Georgetown is only allowed to own or have in his possession one mobile phone, and to tell a Corrective Services officer of the details of any mobile phone he owns or has in his possession within 24 hours of getting that phone;

   (c)Condition 30, which provides that a Corrective Services officer has the power to direct Mr Georgetown to take a drug test or alcohol test, and that Mr Georgetown must take such test when he is told to;

   (d)Condition 39, which requires that Mr Georgetown tell a Corrective Services officer the name of new persons he has met, which extends to spending time with, working with, making friends with, seeing, or speaking to regularly, but excludes one-off, momentary, fleeting interactions; and

   (e)Condition 41, which provides that Mr Georgetown must advise his case manager of any personal relationships he has started.

9. The circumstances of the alleged contraventions are set out in paragraphs 10 to 15 of the written outline filed on behalf of the Attorney-General.

10. The first is that on 9 November 2022, Mr Georgetown was observed by Corrective Services staff to meet and engage with an unknown adult female outside the Brisbane Correctional Centre, and that he did not tell his supervising Corrective Services officer as required by requirement 39 of the order.

11. The outline as filed then referred to an alleged contravention on 11 November 2022. The outline stated that the respondent was observed by Corrective Services staff to engage with an unknown adult female at the Goodna train station on 11 November 2022, and not having told his supervising Corrective Services officer of the meeting as required by requirement 39 of the order. As raised with Mr Rolls, who appeared as counsel for the Attorney-General, I was not satisfied that there was direct evidence of such an engagement, and that alleged contravention was not pressed. There was evidence of Mr Georgetown’s conduct at the Goodna train station on the relevant date, and I accept the submission that that evidence remains relevant to the question of management of the risk, to which I will return; although, it does not establish the specific contravention referred to.

12. Nothing ultimately turns on my not being satisfied of that particular alleged contravention.

13. I am satisfied that when Mr Georgetown was observed at Goodna train station on 11 November 2022, and upon his return to the Wacol Precinct where he was residing, that he was using a smartphone which he had not received permission to use or possess, in breach of requirement 21 of his order.

14. The next contravention is that on 24 November 2022, Queensland Corrective Services received information indicating that Mr Georgetown may have an undisclosed adult female partner who was believed to be the parent of three children aged between two and seven years, and that Mr Georgetown had not disclosed that association to Corrective Services officers, contrary to requirements 39 and/or 41 of the order.

15. It is next alleged that, in February 2023, Queensland Corrective Services staff received information that Mr Georgetown was breaching his curfew by attending areas behind his house with a flashlight contrary to the curfew imposed by requirement 14 of his order.

16. Corrective Services staff also received information that Mr Georgetown was using buprenorphine in excess of the dose that he had been prescribed.

17. On 20 February 2023, Mr Georgetown was asked to provide a urine sample, but did not provide such a sample in breach of requirement 30 of his order.

18. Finally, on 24 February 2023, the respondent and another resident of the Wacol precinct were observed on CCTV footage leaving their residence contrary to the curfew direction, again contrary to the requirement 14 of the order.

19. Mr Georgetown does not challenge that there is evidence of his contravention of the requirements of the order identified by the Attorney-General. The outline filed on his behalf also accepted that other requirements were contravened, namely, condition 6, which requires that Mr Georgetown obey any reasonable direction given to him by a Corrective Services officer, and condition 11, which requires that Mr Georgetown obey any rules that are made about people who live at the place where he has been approved to live.

20. In submissions, it was made clear that the acceptance that those additional conditions have been contravened does not involve any conduct other than that relied upon by the Attorney-General. That is, that the conduct identified in the outline filed on behalf of the Attorney-General not only contravened the particular conditions upon which the Attorney-General will rely, but also contravened what might be described as more broad conditions in 6 and 11.

21. However, what is really in issue is the conduct itself and the risk that conduct poses, not the number of conditions which have been breached and that is the basis upon which I approach this application.

22. Ultimately, Mr Georgetown, through his counsel, conceded that I can be satisfied in accordance with s 22(1) of the Act that he has contravened requirements of the supervision order and, having considered the material, that concession was appropriate.

23. I am satisfied to the requisite standard that Mr Georgetown contravened requirements 14, 21, 30, 39 and 41 of the supervision order in the manner set out in the Attorney-General’s outline, save for the one contravention I referred to earlier.

24. As to the second step, pursuant to s 22(2) of the Act, upon being satisfied on the balance of probabilities of the contraventions, if Mr Georgetown does not satisfy the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured, the Court must rescind the supervision order and make a continuing detention order.

25. The reference to the adequate protection of the community in s 22(2) is a reference to that term as explained in s 13 of the Act. It is a reference to the adequate protection of the community from the unacceptable risk that Mr Georgetown will commit a serious sexual offence.

26. Put another way, the risk against which the community must be adequately protected is not the risk of further contravention of the supervision order by conduct which does not amount to the commission of a serious sexual offence. In that context, the outline of submissions for the Attorney-General appropriately acknowledged that the mere fact that a respondent may in the future breach a supervision order in a manner which may demonstrate an escalation of the relevant risk, but not the likely manifestation of that risk does not preclude Mr Georgetown from discharging the onus upon him concerning protection of the community by a supervision order.

27. In particular, relevant to the circumstances of this case, the Attorney-General accepts that where the future conduct might be the ingestion of intoxicants—whether those be alcohol or drugs—which may cause an escalation of risk, but the Court can be satisfied that the supervision order will nevertheless operate to effectively prevent that increased risk reaching a critical point where the commission of a serious sexual offence becomes likely, then it is open to order that the respondent be released subject to the terms of such order. Ultimately, each case must depend on its own facts.

28. The parties’ submissions address psychiatric evidence which was filed for the purposes of the present application.

29. This evidence is relevant to the question whether I am satisfied that the adequate protection of the community could be ensured by Mr Georgetown’s return to the community under the existing supervision order.

30. Dr Jane Phillips assessed Mr Georgetown on 18 August 2023 and provided a psychiatric report dated 29 August 2023. Dr Phillips expressed her diagnostic opinion concerned Mr Georgetown on page 18 of her report:

    “Mr Georgetown meets criteria for a diagnosis of Antisocial Personality Disorder. He has demonstrated a pervasive pattern of disregard for and violation of the rights of others, occurring since age 15 years, as indicated by failure to conform to social norms with respect to lawful behaviours, as indicated by repeatedly performing acts that are ground for arrest; impulsivity; irritability and aggressiveness; consistent irresponsibility; and limited remorse. Mr Georgetown has significant psychopathic personality traits. However, on the Psychopathy Checklist Revised (PCL-R) Mr Georgetown scored 26, which is below the cut-off required for a diagnosis of psychopathy.”

31. That assessment had regard to the results of a number of risk assessment tools. The results of those assessments are summarised in the written submissions of the Attorney-General and it is not necessary for me to set them out in this judgment. I note that Dr Phillips recognised that considerable caution needs to be exercised in interpreting those results because the tools referred to group risk rather than an individual’s risk and some of the tools or the outcome of the tools has not been validated in the Australian context, particularly in respect of the indigenous application.

32. Notwithstanding that caution, Dr Phillips’ opinion was that Mr Georgetown’s future risk of sexual reoffending is high if he were to be released without a supervision order, and that his risk of future physical violence is also high, but that at the time of her assessment, Mr Georgetown did not, in Dr Phillips’ view, present an imminent risk of physical or sexual violence.

33. On the question of the effect of the existing supervision order, Dr Phillips expressed an opinion on page 22 of her report:

    “It is my opinion that a supervision order would assist in reducing the risk of re-offending by offering assertive monitoring and interventions to target dynamic risk factors for sexual and physical violence.  It is my opinion that Mr Georgetown were to be released from custody with a supervision order, in the context of ongoing individual psychological intervention, abstinence from alcohol and illicit substances, a SOMP and robust supervision in the community, that his risk of sexually re-offending would be in the moderate range.  I consider there is a reasonably high likelihood that Mr Georgetown will again breach the conditions of the supervision, as occurred during his previous period in the community.   However, it is positive that the HROMU were able to intervene early prior to Mr Georgetown sexually re-offending.

    The future risk of sexual re-offending would increase in the setting of relapse to substance use, acute intoxication, boredom or psychosocial stressors, for example, relationship breakdowns, perceived rejections, loss of social supports, frustrations at the restrictiveness of the conditions at the Precinct or re-engaging with his previous pro-offending and substance abusing peer group.  Mr Georgetown has limited adaptive coping skills to manage psychosocial stressors and would be at risk of emotional collapse and returning to his long-standing maladaptive pattern of substance use in the context of psychosocial stressors.  He has been noted to have a pattern of avoidant coping skills.  The risk of sexual re-offending would also increase in the setting of victim access, increased sexual pre-occupation or rejection of supervision.  The victim of future offending would likely be an adolescent female or young adult female.  The victim may be a female family member or a stranger.  He may also pose a risk to female acquaintance or future intimate partners.

    One potential scenario for future sexual offending is that Mr Georgetown will sexually re-offend in a similar manner to the index sexual offending.  That is, serious sexual offending involving penetration (digital, vaginal and anal rape) involving significant physical violence and threats.  A further scenario is that Mr Georgetown will escalate in the severity of his sexual offending, to include even more serious physical violence.  Another scenario would be a repetition of his earlier sexual offending, for example, exposing himself and masturbating in public.

    Future sexual offending has the potential to cause significant physical and psychological harm to the victims.”

34. As to the question of future management, Dr Phillips opinions and recommendations were set out on page 23 of her report:

    “RECOMMENDATIONS FOR FUTURE MANAGEMENT

    ·It is my opinion that Mr Georgetown’s risk of committing a future serious sexual offence could be managed on a supervision order in the community while residing at the Wacol Precinct, followed by a graduated transition to the broader community.

    ·I recommend that risk management interventions focus upon psychological interventions, supervision and monitoring, environmental measures and multi-agency planning and information sharing.

    ·It is my opinion that Mr Georgetown would benefit from future individual psychological intervention with Dr Morgan or another forensic psychologist with experience in managing sexual offenders.  He would benefit from further intervention focussing on adaptive coping skills, problem solving, interpersonal skills, identifying high risk situations and relapse prevention planning.

    ·It is recommended that following his release, Mr Georgetown engage in a Sexual Offending Maintenance Program (SOMP).

    ·It is my opinion that Mr Georgetown would benefit from further intervention regarding his use of substances.  It would be beneficial to continue with the group substance intervention program at DGM psychology.  I recommend that there be a condition that he not be allowed to consume any alcohol or illicit drugs and that there be frequent random breath alcohol testing and urine drug screens.

    ·At the time of my assessment Mr Georgetown did not have inpatient psychiatric treatment needs.  There was no current indication for him to be referred to a public mental health service or a private psychiatrist.

    ·It is my opinion that treatment with anti-libidinal medications is not clinically indicated.

    ·He would benefit from linking with employment services and activities to reduce his level of boredom.

    ·It is recommended that Mr Georgetown be linked with culturally appropriate supports in the community.

    ·All the conditions of the previous supervision order, and the duration, remain clinically appropriate.  This should include no contact with children; monitoring of associations; abstinence from alcohol and illicit substances; breath alcohol and urine drug screens; and GPS monitoring.”

35. Dr Karen Brown interviewed Mr Georgetown on 24 August 2003 and again on 28 September 2023. She provided a psychiatric report dated 29 September 2023. Dr Brown expressed her diagnostic opinion concerning Mr Georgetown on page 26 of her report.

    “DIAGNOSES

    The diagnoses are the same as my previous report:

    Mr Georgetown has a diagnosis of antisocial personality disorder. He presented with conduct disorder as a child. He has engaged in serial antisocial behaviours and he has not changed his presentation despite incarceration. He is consistently irresponsible and has failed to meet his reporting obligations. He externalises blame to others. He is impulsive and he fails to plan ahead. He shows a reckless disregard for his safety and that of others. His experiences of parental abandonment, wider family violence and substance use and sexual abuse in youth detention will have made him more vulnerable to development of personality disturbance.

    Mr Georgetown also has a diagnosis of substance use disorder (amphetamine, cannabis, alcohol, buprenorphine), which is currently attenuated in a custodial environment and with prescribed opiates. He has prioritised substance use over other activities, he has used despite imprisonment, he has not been able to consistently reduce or stop use of substances and he has failed to meet his various obligations due to substance use. He may have been diverting and/or additionally using buprenorphine.

    I have not diagnosed a paraphilia. Mr Georgetown has not offended against prepubescent female children and therefore he does not meet criteria for a diagnosis of paedophilia. He has exposed himself in the past, however it is possible that his behaviour was due to disinhibition secondary to intoxication (coupled with a high sex drive and antisocial personality) rather than exhibitionism disorder (although further exploration is required). I note use of violence during the index offence, but it is more likely that this was to physically control and subdue the victim, rather than to achieve sexual arousal. Therefore Mr Georgetown does not meet criteria for a diagnosis of sexual sadism disorder.”

1. Dr Brown’s risk assessment and recommendations were set out in section F of her report on pages 28 and 29:

   “SECTION F: CONCLUSIONS AND RECOMMENDATIONS

   In my opinion Mr Georgetown’s unmodified risk of sexual reoffending is at least moderate to high. Risk factors include the relative chronicity of his offending (despite his young age), his antisocial personality, his substance use disorder and his problems with supervision. He probably does not have a paraphilia, however his sexual preferences and drives are not well understood and he may have a high sexual drive. Sexual offending risk would be increased if Mr Georgetown were to have access to a teenage female child (or vulnerable adult), which would most likely occur if he was visiting or staying with family or friends. Risk would also be increased with intoxication and/or when sexually frustrated.

   Mr Georgetown was supervised in the community for 5 months, during which time he contravened the supervision order on multiple occasions. Some of the contraventions were minor, such as poor timekeeping or failure to adhere to precinct rules, but others were of more concern, including possession of an unauthorised smart phone (and failure to give the password to police), stealing, drug possession (and possible use) and contact with unknown females. He now advises that he has an infant son (now about 9 months of age) from a brief relationship in 2022 whilst he was on parole.

   Mr Georgetown found the supervision order to be restrictive and over time he became resentful and disengaged from the case management and supervision process. He continues to externalise blame and he does not take responsibility for his situation. Individualised sexual offender treatment sessions were not particularly helpful. I note that Mr Georgetown spent most of his time at the Precinct on a Stage 1 curfew with escorted movements and that these measures were not sufficient to prevent the behaviours that led to the contraventions.

   However, in my opinion, the risk of sexual reoffending will still be reduced to a moderate and manageable level if Mr Georgetown is re-released to a supervision order, albeit that he may need to remain on a strict curfew for a prolonged period. Mr Georgetown was difficult to monitor in the community but he did not reoffend sexually. Mr Georgetown will not profit from continued custodial detention and the risk of institutionalisation and further disengagement will increase. Over time it is anticipated that Mr Georgetown will begin to adhere to the conditions of the supervision order and engage in a gradual transition into the community.

   As per my previous report, Mr Georgetown should be abstinent from alcohol and illicit substances and prevented from contact with female children. Mr Georgetown should continue to engage with a forensic psychologist to address past traumas, substance use and sexual offending. He should also complete the Sexual Offending Maintenance Program. He should engage with specialised addictions service such as AODS. He should continue to be offered Indigenous support. His electronic devices should be monitored and urine drug screens should be carried out with some regularity. He should also be supported to develop a prosocial routine and to find employment (as a priority). He should receive appropriate treatment for his skin infection.

   Mr Georgetown may need a slow progression through the curfew stages dependent on his compliance the order. Failure to adhere to the conditions of the order (particularly contact with unknown females and/or children or if he has used drugs), should prompt a review of his risk management and return to prison if necessary.

   I note that the order was made for a 7 year period. In my view this remains appropriate period of time so as to manage the risk. Should Mr Georgetown contravene the order again, the period of supervision may need to be extended.”

2. This psychiatric evidence supports the conclusion that the respondent’s risk of committing a further serious sexual offence can be reduced and appropriately managed under the terms of the existing supervision order.

3. Importantly, despite the current contraventions and difficulties experienced in monitoring Mr Georgetown, he did not reoffend sexually. In this regard, I note Dr Brown’s opinion that Mr Georgetown may need a slow progression through the curfew stages if released back into the community depending upon his compliance with the terms of the supervision order and the requirement for a review of his risk management if, in future, he contravenes the order, particularly by contacting unknown females and/or children or using drugs.

4. I understand Dr Phillip’s opinion as to the reasonably high likelihood of Mr Georgetown breaching the supervision conditions again in future, but the success of the supervision in permitting corrective services to intervene early following the current contraventions before any sexual reoffending to be broadly similar to the opinion held by Dr Brown.

5. In light of that evidence, the Attorney-General’s submissions frankly and appropriately accept that it is open to the Court to be satisfied on the evidence that the adequate protection of the community can, despite the contraventions, be ensured by Mr Georgetown’s return to the existing supervision order.

6. I am satisfied, to the necessary level of satisfaction, that on the evidence the adequate protection of the community can, despite the contravention, be ensured by Mr Georgetown’s return to the existing supervision order.