Attorney-General for the State of Queensland v Jacob

Case [2019] QSC 289

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Jacob [2019] QSC 289

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
RAYNARD SMITH JACOB

(respondent)

FILE NO/S:

BS No 5548 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2019

JUDGE:

Davis J

ORDER:

The court, being satisfied to the requisite standard that the respondent Raynard Smith Jacob has contravened a requirement of a supervision order made by Justice A Lyons on 22 September 2015 as amended by order of Justice Ryan on 26 February 2019, orders that:

1.   the respondent Raynard Smith Jacob be released from custody no later than 12pm on Monday, 25 November 2019 and continue to be subject to the supervision order made by Justice A Lyons on 22 September 2015 as amended by Justice Ryan on 26 February 2019.

2.   A copy of the written submissions of Ms Gover of Counsel be sent to Ms Jolene Monson, High Risk Offender Management Unit, 69 Ann Street, Brisbane, together with a copy of these reasons.

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 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 previously for breach of the supervision order – 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 13, s 20, s 22

Attorney-General for the State of Queensland v Ellis [2012] QCA 182, cited
Attorney-General (Qld) v Fardon [2013] QCA 64, cited
Attorney-General for the State of Queensland v Fardon [2019] QSC 2, cited
Attorney-General (Qld) v Fisher [2018] QSC 74, cited
Attorney-General v Francis [2007] 1 Qd R 396, followed
Attorney-General for the State of Queensland v Jacob [2015] QSC 273, cited
Attorney-General for the State of Queensland v KAH [2019] QSC 36, followed
Attorney-General v Lawrence [2010] 1 Qd R 505, 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…

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AGLC
Attorney-General for the State of Queensland v Jacob [2019] QSC 289
Case
[2019] QSC 289
Decision Date

CaseChat Overview and Summary

The case of Attorney-General for the State of Queensland v Jacob involved the application by the Attorney-General for orders in relation to the respondent, who had contravened a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The court had to decide 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 the evidence of psychiatrists who assessed the respondent's risk of reoffending and whether there were any factors that supported or did not support an extension of the supervision order.

The court found that the evidence of the psychiatrists indicated that the respondent could be adequately managed in the community despite the contraventions. The court was satisfied that the adequate protection of the community could be ensured by the existing supervision order. Therefore, the court ordered that the respondent be released from custody and continue to be subject to the supervision order.

This case highlights the importance of considering the evidence of psychiatrists in determining whether the adequate protection of the community can be ensured by a supervision order. The court must balance the risk of reoffending with the potential benefits of an extension of the supervision order. Ultimately, the court found that the existing supervision order was sufficient to manage the respondent's risk of reoffending and ensure the adequate protection of the community.

Orders

Orders of the court

The court, being satisfied to the requisite standard that the respondent Raynard Smith Jacob has contravened a requirement of a supervision order made by Justice A Lyons on 22 September 2015 as amended by order of Justice Ryan on 26 February 2019, orders that:

1. the respondent Raynard Smith Jacob be released from custody no later than 12pm on Monday, 25 November 2019 and continue to be subject to the supervision order made by Justice A Lyons on 22 September 2015 as amended by Justice Ryan on 26 February 2019.

2. A copy of the written submissions of Ms Gover of Counsel be sent to Ms Jolene Monson, High Risk Offender Management Unit, 69 Ann Street, Brisbane, together with a copy of these reasons.

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 The applicant was born on 27 March 1960. He is an indigenous islander man who was born on Thursday Island and grew up in Bamaga. In March 2003, he pleaded guilty to an offence of indecent dealing with a child under the age of 16 years on a date unknown between 1 January 1999 and 20 July 2000. He was sentenced to six months’ imprisonment by way of an intensive correction order. Ultimately, that intensive correction order was revoked and he was imprisoned for 179 days. Between 1977 and 2009 the respondent accumulated a lengthy criminal history. Those convictions were for unlawful use of motor vehicles, offences against public order (assault-resist-obstruct police, contravene directions given under the Police Powers and Responsibilities Act 2000), various offences of violence, breaches of domestic violence orders, breaches of bail and breaches of suspended sentences. Up until 2010 though, his only offence of a sexual nature was the offending for which he was convicted in March 2003. In 2010 the respondent was convicted on his own plea of guilty in the District Court at Cairns of one count of assault with intent to rape and one count of rape. That offending was described by A Lyons J as follows:“[3]… The complainant and the respondent were known to each other and the respondent grabbed the complainant, who was 31 years of age, and forced her into a cane paddock where he placed his hands over her mouth. When she bit him, he choked her with the strap of her bag and forcibly inserted his penis into her vagina. When she kicked him in the stomach, he ceased any further efforts at penile penetration, but forcibly inserted three of his fingers into her vagina. The incident concluded when witnesses intervened. The respondent contended at the sentencing hearing that he was drunk at the time but otherwise accepted the matters contained in the schedule of facts. [4]He was sentenced to four years’ imprisonment on the count of assault with intent to rape and six and a half years’ imprisonment on the count of rape. There was a recommendation for parole after two and a half years and a total of 372 days of presentence custody was declared as time served. His full time release date is 1 October 2015 and he will therefore have served the full term of six and a half years at the time of his release.”[19][19] Attorney-General v Jacob [2015] QSC 273 at [3]-[4]. When making the supervision order, Justice A Lyons received evidence from three psychiatrists, Dr Sundin, Dr Beech and Professor Nurcombe. Her Honour summarised Dr Sundin’s evidence in this way:“[12]In conclusion, Dr Sundin considered that the respondent met the DSM criteria for Anti-Social Personality Disorder and Alcohol Abuse Disorder (in remission whilst in custody). Dr Sundin conducted a number of actuarial risk assessments and concluded that although he did not meet the full diagnosis for psychopathy with a score of 23 out of 40 on the Hare PCL-R, it was an elevated score. On the Static 99‑R, he had a score of 6 which placed him in the high risk of reoffending category. In relation to the VRAG, he had a score of 15 which placed him in Category 7 with a 55% risk of violent reoffending at seven years and a 64% risk at 10 years. In terms of the SVR, he had a moderate to high risk of future sexual reoffending. Dr Sundin was uncertain whether the risk which the respondent presents rises to the level of seriousness that would warrant a supervision order under the Act. She stated:‘When ultimately Mr Jacob [the respondent] is released, he is at a high risk for relapse into a pattern of alcohol abuse and that such relapse will be associated with general levels of violence and the potential for high levels of domestic violence directed towards intimate partners. I consider that he is at moderate risk of sexual violence to non-intimate female partners. I consider his overall risk for future sexual violence is in the moderate zone. I do not consider that his participation in the Sexual Offenders Program for Indigenous Males [SOPIM] has significantly altered his risk, given his absolute denial of any offending behaviour and failure to demonstrate any empathy with regards to his victims.’”[20][20] Attorney-General v Jacob [2015] QSC 273 at [12]/ the Hare PCL-R, VRAG and SVR are all clinical tests to assess risk.

Evidence

Evidence Before The Court

As previously observed, the respondent admits the breaches of the supervision order.Current psychiatric evidence Reports have been received into evidence from psychiatrists, Drs Arthur and McVie. Dr Arthur is concerned about the respondent returning to alcohol abuse. Dr Arthur in his report says:“I have previously considered that prisoner Jacob represents a moderate risk of future sexual violence and a high risk of future nonsexual violence. These risks would be elevated should he return to alcohol use.Whilst he has continued to present as a management challenge, the supervision order appears to have been effective in maintaining his abstinence from alcohol and reducing the incidence of physical violence. The recent breaches have not involved a return to substance use,[23] sexual offences or physically violent behaviour.”And later“My opinion remains that prisoner Jacob’s risk of sexual recidivism can be managed adequately under the conditions of his current supervision order. It appears to have been effective in assisting him remain abstinent from alcohol, one of the most significant risk factors for future general and sexual violence. Although the charges for possession of cannabis may indicate that he is at risk of a return to illicit substance use, I acknowledge that cannabis use is not directly related to his sexual offences.”[23] Although he was convicted of cannabis possession. As to whether the duration of the supervision order ought to be extended, Dr Arthur said:“Prisoner Jacob’s supervision order is due to expire on 22 December 2020[24] and I have been asked to provide an opinion as to whether the period of the supervision order ought to be amended . [24] The supervision order in fact expires in September 2020.Factors not supporting an extension of his supervision order include the following -Based on the static and dynamic risk factors, he represents a moderate risk of future sexual violence.There has been no clear evidence of further sexual offending or a return to alcohol use throughout the duration of his supervision•At the completion of his order he will be close to 60 years of age; advancing age is associated with a reduction in risk of sexual recidivism.Factors supporting an extension of the order would include the following-•There have been further unsubstantiated allegations of sexual violence towards women.•He has continued to make verbal threats of violence against female staff members and behaved in an intimidatory manner during case management sessions.•Prisoner Jacob’s underlying Antisocial Personality disorder remains static.•It was previously noted that he did not express a firm conviction to remain abstinent from alcohol at the completion of the order.•There appears to be no evidence of a shift in the core attitudes which support sexual violence.His propensity to reoffend has not altered. There is no compelling evidence that he has gained any appreciable benefit from treatment programs with responsivity factors including his ongoing denial of culpability, mistrust of authority and perceiving himself as a victim of an unjust judicial system.Whilst, to his credit, he has remained abstinent from alcohol for the duration of his order, he has been ambivalent about returning to alcohol use in the future. The relevance of his recent cannabis possession is unclear, although suggests an ambivalence towards substance use.Despite his advancing age, he is still sexually active and is seeking out further intimate relationships. The risk of future domestic violence remains significant. Although his breaches and contraventions to date have not involved alcohol use nor a return to sexual offending, they have involved threatening and intimidatory behaviour towards women.The main benefit of an extension would be to ensure prisoner Jacob remains abstinent from alcohol. Based on the fact that (apart from advancing age) his other risk factors have remained largely static, this is the most relevant factor amenable to change. I believe this would justify the extension of his supervision order.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Dr McVie expressed this opinion:“Assessment, actuarial and structured clinical, continues to indicate Mr Jacob remains at least at moderate risk of reoffending sexually. This risk would be decreased to low with community supervision. Based on his history, the risk of violent non sexual reoffending remains moderate. The risk of general offending remains high. Sexual reoffending would most likely occur in the context of a domestic violence situation or due to a combination of external stressors and alcohol intoxication.Further detention in custody or further programs in custody are unlikely to modify this man’s attitudes or risk of future sexual offending.His failure to comply with conditions of his supervision order in August 2018 and again in August 2019, did not lead to serious criminal offending. The issue of whether the supervision order should be extended past September 2020 is more complex.I note Professor Nurcombe, in his report of 9 September 2015, questioned if this man’s risk then warranted the use of the legislation and recommended five years if an order were made.Mr Jacob’s antiauthoritarian and misogynistic attitudes are unlikely to alter significantly in the longer term. He is unlikely to gain any further insight, remorse or empathy regarding his past behaviours. Continuation of the order may well intensify his resentment of the justice system and his beliefs regarding being discriminated against based on ethnicity. This could paradoxically increase his agitation and increase risk, probably more risk of physical violence rather than sexual violence.He has not reoffended sexually and has been abstinent from alcohol throughout his over three years residing in the community on the supervision order.He does not have a paraphilia.In July 2019, his treating psychologist considered him to be a low risk of recidivism, in spite of his continued denial of his sexual offending. Risk of sexual violence, in particular adult rape, decreases with age. Mr Jacob is reaching an age where his sexual recidivism risks would be decreased.Caution should also be applied in any interpretation of risk assessment in the indigenous population as validation of these assessment tools has not been completed in this population. In my opinion, Mr Jacob should be returned to his current supervision order and he should be returned to therapy with his male treating psychologist, Dr Walkley, who appears to have engaged him in supportive counselling as an approach to possible cognitive repositioning. Overall, my opinion is that further extension of the supervision order past September 2020 is not required in this case. I would be happy to review this opinion if further information were provided or following a further interview with Mr Jacob.”Consideration I accept the evidence of the psychiatrists that despite the contraventions the respondent can be adequately managed in the community. I am satisfied then that the respondent has discharged the onus cast upon him under s 22(7) of the Act “that the adequate protection of the community can, despite the contravention … of the existing order be ensured by a supervision order”.