Attorney-General for the State of Queensland v Gray

Case [2019] QSC 43

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Gray [2019] QSC 43

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
MAXWELL EDWARD GRAY

(respondent)

FILE NO/S:

No 7877 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

1 March 2019

Orders made on 12 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2019

JUDGE:

Davis J

ORDER:

THE COURT, being satisfied to the requisite standard that the respondent, Maxwell Edward Gray, has contravened a requirement of the supervision order made by Justice P. Lyons on 2 December 2010 as amended by Justice A. Lyons on 20 June 2016, ORDERS THAT:

1.    The respondent, Maxwell Edward Gray, be released from custody and continue to be subject to the supervision order made by Justice P. Lyons on 2 December 2010 as amended by Justice A. Lyons on 20 June 2016.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where a supervision order was made with respect to the respondent under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) – where it was alleged that the respondent had contravened a requirement of the supervision order respondent under Division 3 of Part 2 of the Act – where a warrant was issued for the arrest of the respondent pursuant to the Act and the respondent was detained in custody – where the respondent has been the subject of proceedings under Division 5 of Part 2 of the Act on six prior occasions – where the applicant sought orders with respect to the respondent under s 22 of the Act – where the applicant had not committed any further serious sexual offences – whether the adequate protection of the community could, despite the contravention of the order, be ensured by the existing supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 2, s 3, s 5, s 13, s 14, s 15, s 16, s 17, s 22

Attorney-General v Francis [2007] 1 Qd R 396, cited

Attorney-General v Lawrence [2010] 1 Qd R 505, cited

Attorney-General v Yeatman [2018] QSC 70, cited

Attorney-General for the State of Queensland v Ellis [2012] QCA 182, cited

Attorney-General for the State of Queensland v Gray [2016] QSC 141, related

Attorney-General for the State of Queensland v Gray [2017] QSC 260, related

Attorney-General (Qld) v Fardon [2013] QCA 64, cited

Attorney-General (Qld) v Sands [2016] QSC 225, cited

Attorney-General (Qld) v Yeo [2008] QCA 115, cited

Fardon v Attorney-General (Qld) (2004) 223 CLR 575, cited

Kynuna v Attorney-General (Qld) [2016] QCA 172, cited

LAB vAttorney-General [2011] QCA 230, cited

Turnbull v Attorney-General (Qld) [2015] QCA 54, cited

COUNSEL:

B Mumford for the applicant

J Benjamin for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

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Attorney-General for the State of Queensland v Gray [2019] QSC 43
Case
[2019] QSC 43
Decision Date

CaseChat Overview and Summary

The case of Attorney-General for the State of Queensland v Gray involves the respondent, Maxwell Edward Gray, who was subject to a supervision order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). The respondent was arrested for alleged breaches of the supervision order, specifically for assault and unlawful possession of a weapon. The central legal issue for the court was whether the adequate protection of the community could be ensured by the existing supervision order, despite the respondent's contravention of the order. The court had to consider whether the risk of the respondent committing a serious sexual offence was sufficiently low to warrant his release back into the community on the supervision order.

The court's reasoning focused on the respondent's risk of committing a serious sexual offence, which is the primary concern of the Act, rather than his propensity to breach the supervision order. The court accepted the opinion of Dr Ken Arthur, the consultant psychiatrist, who assessed the respondent’s risk of sexual recidivism as low. The court found that the respondent had not committed a serious sexual offence for over 20 years, and his risk of sexual recidivism had reduced over the time of his supervision order. Given this, the court concluded that the adequate protection of the community could be ensured by the existing supervision order.

The court ordered that Maxwell Edward Gray be released from custody and continue to be subject to the supervision order made by Justice P. Lyons on 2 December 2010, as amended by Justice A. Lyons on 20 June 2016. The decision underscores the importance of the risk assessment of serious sexual recidivism in determining whether to release a dangerous sexual offender from custody under the Act.

Orders

Orders of the court

THE COURT, being satisfied to the requisite standard that the respondent, Maxwell Edward Gray, has contravened a requirement of the supervision order made by Justice P. Lyons on 2 December 2010 as amended by Justice A. Lyons on 20 June 2016, ORDERS THAT:

1. The respondent, Maxwell Edward Gray, be released from custody and continue to be subject to the supervision order made by Justice P. Lyons on 2 December 2010 as amended by Justice A. Lyons on 20 June 2016.

Background

Background to the litigation

The issue under s 22 of the Act is not whether there is an unacceptable risk that the respondent will breach the supervision order. The issue is whether there is an unacceptable risk that he will commit a serious sexual offence.[18][18] Attorney-General (Qld) v Francis [2012] QSC 275 at [64]-[67]. Background to the present application The respondent was born on 16 January 1962. He has just recently turned 57 years of age. He is of Pacific Islander descent. The respondent has a criminal history dating back to the late 1970’s. Of particular significance, he was convicted of rape in 1984. The victim there was a 17 years old young woman. In 1997, he was convicted of further offences of rape and was sentenced to a term of imprisonment of 14 years. Those were the offences which ultimately attracted an order under the Act. On 2 December 2010, P. Lyons J found that the respondent was a serious danger to the community if released without an order under Division 3 of Part 2 of The Act. His Honour released the respondent on a supervision order which is to expire on 16 January 2021. Since being released on supervision the respondent has breached the supervision order and been the subject of proceedings under Division 5 of Part 2[19] on six prior occasions. This is his seventh breach. The earlier breaches occurred in May 2011, May 2012, November 2013, May 2014, April 2015 and October 2017. All the breaches apart from the one committed in April 2015 were breaches of condition (xxiii) of the supervision order which requires the respondent to abstain from the consumption of illicit drugs and alcohol. The 2015 breach was a contravention of requirement (xiv) which requires the respondent not to commit any indictable offences. [19] Which contains ss 20 and 22 set out earlier. The 2015 breach involved the respondent using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). That offence arose from a domestic situation and the circumstances are fully described in the judgment of A. Lyons J in Attorney-General for the State of Queensland v Gray.[20] The entire breach history is described by her Honour in the later decision of Attorney-General for the State of Queensland v Gray.[21][20] [2016] QSC 141.[21] [2017] QSC 260. The result of each of the various breach proceedings was that the respondent was released back on the supervision order. In one case the supervision order was amended.The contravention The respondent was arrested on a warrant issued pursuant to s 20 of the Act alleging that he had committed two indictable offences both on 4 November 2017 and essentially arising out of single series of events. What was alleged against the respondent was one count of assault against s 339(1) of the Criminal Code and one count of unlawful possession of a weapon (category A, B or M) against s 50(1)(c)(iii) of the Weapons Act. On 20 December 2017, the charge of assault was dismissed and on 18 January 2018 the respondent pleaded guilty to the unlawful possession of a weapon charge.

Evidence

Evidence Before The Court

The respondent explained to police that the firearm was an old rifle that had been owned by his grandfather. The respondent accepted that the rifle had probably never been registered and he could not offer any explanation or excuse for possessing it.The Psychiatrist’s evidence The respondent has been the subject of psychiatric examination by various psychiatrists appointed to prepare risk assessment reports pursuant to The Act.[22] Dr Ken Arthur, consultant psychiatrist examined the respondent for the purposes of the present breach proceedings.[23] Dr Arthur’s current diagnoses are as follows:“He fulfils the diagnosis for an Antisocial Personality Disorder. There is insufficient evidence to support a diagnosis of a Paraphilia. He also has an Alcohol and Cannabis Misuse Disorder, currently in remission in jail. It is likely that he has experienced episodes of a Drug-Induced Psychosis in the past although I cannot wholly discount a low-grade psychotic illness. It is possible that he has some form of cognitive impairment, although the aetiology of this is unclear.”[24][22] Dr James Lawrence report 16 November 2009; Dr Donald Grant report 11 September 2010; Dr Scott Harden reports 26 November 2010 and 1 June 2016.[23] His report 18 November 2018, Exhibit “KA-2” to his affidavit CKI 194.[24] Paragraph 250 of Dr Arthur’s report. As to risk, Dr Arthur opined in his report:“Whilst prisoner Gray’s risk of sexual recidivism has reduced over the time of his supervision order, it remains in the moderate range. I am satisfied that the current supervision order is sufficient to identify any return to substance use in a timely manner. He remains in treatment with Dr Madsen[25] who is well placed to monitor his mental state for any signs of psychotic relapse.It is my opinion that his risk of sexual recidivism if released from custody on his current supervision order would be reduced from moderate to low.”[26] [25] A psychologist treating the respondent. [26] Paragraph 270-271 of Dr Arthur’s report. The parties’ submissions It was submitted on behalf of the respondent that he should be released back into the community on a supervision order without further amendment. There was no opposition to that course on behalf of the Attorney-General.Disposition The issue is whether the respondent has satisfied the Court that the adequate protection of the community can be ensured by the existing supervision order whether amended or otherwise. What is relevant is a consideration of the protection of the community from the commission by the respondent of a serious sexual offence. The Act does not seek to protect against general offending. The propensity of the respondent to breach any supervision order, while relevant, is only relevant to his risk of committing a serious sexual offence. Here, the respondent has not committed a serious sexual offence for over 20 years. While for some of that time he has of course been in custody, he has also been in the community for lengthy periods.

Decision

Reasons for decision

Dr Arthur’s opinion is that the respondent’s risk if released on a supervision order is low. I accept that evidence.Conclusion I find the breach proven. I find that the respondent has proved that the adequate protection of the community can, despite the contravention, be ensured by the existing supervision order, as previously amended. For those reasons, I ordered that the respondent be released back onto the supervision order.

Ratio Decidendi

Legal Principle Established

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