Attorney-General for the State of Queensland v Howard Benjamin Charles Wano

[2025] QSC 42

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Howard Benjamin Charles Wano [2025] QSC 42

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
HOWARD BENJAMIN CHARLES WANO

(respondent)

FILE NO/S:

BS 3708/22

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

18 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2025

JUDGE:

Treston J

ORDER:

The respondent be released from custody and continue to be subject to the supervision order made on 22 August 2022 with the amendment that the duration of the order be changed to until 18 February 2030

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 released to the community under a supervision order in 2022 – where the respondent was alleged to have contravened requirements of the supervision order – where the applicant seeks that the supervision order be rescinded and a continuing detention order made pursuant to s 22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 or in the alternative that the supervision order be amended pursuant to s 22(7) – whether the protection of the community can despite the contravention be ensured by the respondent being returned to the existing supervision order or an amended supervision order

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

COUNSEL:

J Tate for the applicant
P A White for the respondent

SOLICITORS:

Crown Law for the applicant
Legal Aid Queensland for the respondent

Introduction

1. This is an application brought by the Attorney-General for a further order to be made under s 22 of the Dangerous Prisoners (Sexual Offender) Act 2003 (the Act) in respect of the respondent Howard Benjamin Charles Wano for alleged contraventions arising out of an existing supervision order made on 22 August 2022.  It is alleged that the respondent has contravened some of the requirements of the supervision order made by Justice Cooper on that day.

2. The applicant submits that the court would be satisfied that the respondent has contravened the order and therefore seeks firstly that the supervision order be rescinded and a continuing detention order be made, whereby the respondent be detained in custody for an indefinite term for care, control or treatment pursuant to s 22(2)(a) of the Act; or alternatively that the supervision order be amended pursuant to s 22(7).

3. Ultimately the applicant submitted that the court having been satisfied that the order was contravened, the supervision order ought to be amended.

   Alleged contravention

4. When the supervision order was made on 22 August 2022, the respondent was released on 31 August 2022, subject to the order for a period of 5 years until 31 August 2027.

5. The supervision order contained requirements that provided:

   6.    A corrective services officer will supervise you until this order is finished.  This means you must obey any reasonable direction that a corrective services officer gives you about: 

   a)Where you are allowed to live; and

   b)Rehabilitation, care or treatment programs; and

   c)Using drugs and alcohol; and

   d)Who you may or may not have contact with; and

   e)Anything else, except for instructions that mean you will break the rules in this supervision order.

   A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation.

   If you are not sure about a direction, you can ask a corrective services officer for more information, or talk to your lawyer about it.

   …

   11.You must live at a place approved by a corrective services officer.  You must obey any rules that are made about people who live there.

   …

   14.A corrective services officer has power to tell you to stay at a place (for example, the place you live) at particular times.  This is called a curfew direction.  You must obey a curfew direction.

   …

   27.You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs.  You are also not allowed to have with you or be in control of any illegal drugs.

   28.A corrective services officer has the power to tell you to take a drug test or alcohol test.  You must take the drug test or alcohol test when they tell you to.  You must give them some of your breath, or pee (urine) when they tell you to do this.

   …

   31.You must take prescribed medicine only as directed by a doctor.  You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor. 

   32.You must obey any direction a corrective services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor.

   33.You must obey any direction a corrective services officer gives you about participating in any treatment or rehabilitation program.

   …

   35.You must talk to a corrective services officer about what you plan to do each week.  A corrective services officer will tell you how to do this (for example, face to face or in writing).

   …

   38.You must disclose within 24 hours when you get or look at pornographic material of any type.  A corrective services officer may tell you to stop looking at it.  Your treating psychologist may provide advice regarding this.

6. On 31 August 2022 the respondent signed an acknowledgement of his supervision order and all reasonable directions pertaining to the management of that order.  Since his release on 31 August 2022, it is agreed that he has demonstrated ongoing non-compliance which has resulted in numerous notices of contravention being issued relating to:

   (a)deviating from planned movements and not notifying a corrective services officer;

   (b)breaching curfew – leaving early and returning late for curfew leave passes;

   (c)failing to comply with Wacol Precinct Rules by attending other precinct houses and by using the internet;

   (d)failing to disclose pornography use;

   (e)deleting mobile phone data and accessing social media;

   (f)breaching monitoring including failing to charge his electronic monitoring device and not being contactable;

   (g)testing positive to an illicit drugs being methamphetamine and buprenorphine (beyond the requisite cutoff levels);

   (h)failing to take a drug test when directed to;

   (i)failing to attend a substance intervention program as directed; and

   (j)failing to attend psychological treatment as directed.

7. Furthermore, the applicant submits, and the respondent accepts, that in addition he has been subject to one show cause process on 15 February 2024 and two disciplinary meetings on 21 November 2023 and 19 June 2024 arising from non-compliance with the supervision order.

8. On an occasion in May 2023, Queensland Corrective Services records show that he had unapproved and undisclosed contact with a female whilst attending an employment course, in contravention of condition 6 of the supervision order.  On another occasion in September 2023 the Queensland Police found him in possession of an unapproved smart mobile phone which contained unapproved pornography and social media contrary to conditions 20, 21, 22, 23 and 24.  In January 2024 he was convicted of these contraventions and eight counts of fraud in relation to unauthorised use of taxi vouchers.  On other occasions he failed to provide a urine sample.  On 12 June 2024 during a session with a treating psychologist, he made comments about “buy a gun” in response to a discussion about dysfunctional behaviour.  Three days later he failed to comply with his approved leave pass conditions by returning late to the Wacol precinct.  Twelve days later he provided a urine sample which was presumptive positive to methamphetamine and buprenorphine.

9. The respondent was returned to custody on 26 June 2024.

10. As set out above, the respondent concedes that the evidence supports the findings to the requisite standard, on the balance of probabilities, that the respondent has contravened the order, and I am satisfied on the balance of probabilities, as required by s 22(1) of the Act that the respondent has contravened requirements 6,11, 14, 27, 28, 31, 32, 33, 35 and 38.

11. Therefore, pursuant to s 22(2)(a) of the Act, unless the respondent satisfies the court, on the balance of probabilities, that adequate protection of the community can, despite the contravention, be ensured by the existing order, the court must rescind it and make a continuing detention order.

12. The respondent accepts that he bears the onus of satisfying the court as required by s 22(7) but submits that the court would be satisfied on the balance of probabilities that adequate protection of the community can, despite the contravention, be ensured by the existing order, as amended under s 22(7).

    Consideration

13. Although I have found that the respondent has contravened the requirements of his existing order, ultimately the issue here is not whether the respondent is at risk of contravening a requirement of the supervision order to which he is subjected.  Rather it is a question of whether the existing order provides adequate protection to the community in circumstances where the respondent has previously been found to present a serious danger to the community as there is an unacceptable risk he would commit a serious sexual offence if he was released from custody without a supervision order being made.

14. In terms of the risk posed by the respondent, I have evidence from consultant psychiatrists Dr Eve Timmins and Dr Claire Wolfden, each of whom have provided reports.  Neither were required for oral evidence or cross-examination.  They have each provided risk assessment reports and Dr Timmins has given evidence in earlier applications in respect of the respondent.

15. It is unnecessary to repeat all of each of the doctors’ findings. The findings of Dr Timmins are set out at length in the decision of Cooper J in August 2022.[1]

    [1]Attorney-General for the State of Queensland v Wano [2022] QSC 172.

16. In respect of the contraventions, Dr Timmins expressed the view that Mr Wano was at a high risk of re-offending in a sexual manner if he was released into the community without a supervision order.  Dr Timmins however thought that the supervision order appeared to be assisting in containing his risk of serious sexual re-offending.  Dr Timmins recommended that he needed to:

    (a)continue to engage with a forensic psychologist to address his sexual offending, personality vulnerabilities, propensity to dwell on grievances and to assist with better emotional management;

    (b)cease substance use, which requires monitoring;

    (c)engage in some form of work;

    (d)build his support network of friends and family rather than isolating himself away from people; and

    (e)have his internet usage monitored for any potential intimate partner or increased use of pornography indicating a sexual preoccupation.

17. Dr Timmins concluded that under the supervision order his risk was modified to fall into the moderate category and as such the court could give consideration to extending the order. 

18. Finally, Dr Timmins expressed the view that as Mr Wano was already halfway through a five year order, and there had been little shift in his pattern of behaviour that could lead to sexual offending, he needed a further five years to engage more fully in managing those internal factors within himself that raise his risk to the community. 

19. Dr Wolfenden diagnosed the respondent as having a mixed Cluster B Personality Disorder with anti-social and borderline traits but did not think he satisfied the diagnosis for psychopathy.

20. Whilst Dr Wolfenden assessed his unmodified risk in the moderate to high range, she went on to conclude that if he were released to the current supervision order, his risk of recidivist sexual offending would be reduced to below moderate, primarily due to the fact that the external controls of the order would reduce the risk, rather than because of any significant internal change on his behalf.  Dr Wolfenden agreed that he needed to engage in and obtain benefit from significant psychological treatment.

    Conclusion

21. Once the court is satisfied that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order, s 22(7) of the Act provides that if the prisoner satisfies the court, on the balance of probabilities, that adequate protection of the community can, despite the contravention, be ensured by a supervision order then the court must amend the existing order to include all of the requirements under s 16(1). If the order does not already include all of those requirements, the court may otherwise amend the existing order in a way the court considers appropriate so as to ensure adequate protection of the community.

22. The applicant submits that whilst it is evident that the respondent has struggled to live within the terms of his supervision order, it is equally evident that the supervision order is proving effective in managing risk and ensuring the safety of the community.

23. On balance I am satisfied that the evidence of Dr Timmins and Dr Wolfenden supports the finding that adequate protection of the community can be ensured by the respondent’s release from custody on a supervision order under s 22(7) of the Act. Accordingly, I am satisfied that the respondent has discharged the onus upon him under s 22(7) of the Act.

24. Nevertheless, I am also satisfied that the term of the supervision order should be extended by five years duration from the date of the hearing on 18 February 2025.  Accordingly, I was prepared to make the order on that date, and extending the five year duration from that time.