Attorney-General for the State of Queensland v McKellar

Case [2020] QSC 98

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v McKellar  [2020] QSC 98

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
ADAM CLIFFE MCKELLAR

(respondent)

FILE NO/S:

No 9745 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

6 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2020

JUDGE:

Williams J

ORDER:

Orders made on 28 April 2020:

THE COURT being satisfied to the requisite standard that the respondent, Adam Cliffe McKellar, has contravened requirements of the supervision order made by Justice Mullins on 24 November 2014, and amended by Justice Brown on 12 June 2017 and Justice Davis on 18 December 2018‒

DECLARES THAT: 

1. The period of the respondent’s supervision order made on 24 November 2014 and amended by Justice Brown on 12 June 2017 and by Justice Davis on 18 December 2018, by operation of s 24(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, is extended by 318 days to expire on 8 October 2021.

ORDERS THAT: 

2.     The supervision order is amended by omitting in order (i) the words “24 November 2020” and inserting the following underlined words to read:

“(i) The respondent be subject to the following conditions until 24 November 2022”.

3.     The respondent be released from custody and continue to be subject to the supervision order made by Justice Mullins on 24 November 2014 and amended by Justice Brown on 12 June 2017, by Justice Davis on 18 December 2018 and this order.

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 applicant alleged that the respondent breached a supervision order made pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) – where the respondent failed to submit to a substance testing – where the respondent admitted to the use of methylamphetamine – where the applicant sought orders pursuant to s 22 of the DPSO Act – where the issue of the suitability of a proposed residential address arose – whether the court is satisfied that the respondent contravened the requirements of a supervision order – whether the court is satisfied that the adequate protection of the community is able to be ensured by the respondent’s release on the existing supervision order – whether the existing supervision order should be amended

Dangerous Prisoners (Sexual Offenders) Act 2003, s 3, s 5, s 13, s 13A, s 14, s 15, s 16, s 20, s 22, s 23, s 24

Attorney-General for the State of Queensland v KAH [2019] QSC 36, considered

Attorney-General for the State of Queensland v Ruhland [2020] QSC 33, considered

Attorney-General v McKellar [2019] QSC 92, considered

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

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

Attorney-General (Qld) v Foy [2014] QSC 304

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Attorney-General for the State of Queensland v McKellar [2020] QSC 98
Case
[2020] QSC 98
Decision Date

CaseChat Overview and Summary

The case of Attorney-General for the State of Queensland v McKellar involved the respondent, Adam Cliffe McKellar, who was subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The Attorney-General sought to rescind the supervision order and make a continuing detention order after McKellar allegedly breached the order by failing to submit to a substance test and subsequently admitting to the use of methylamphetamine. The primary issues before the court were whether McKellar had contravened the supervision order and, if so, whether the adequate protection of the community could be ensured by his release on the existing supervision order or with suitable amendments.

The court considered psychiatric evidence from Dr Scott Harden and Dr Andrew Aboud, both of whom assessed McKellar's risk of sexual reoffending as moderate to high without a supervision order, but between moderate and low under the strict supervision of a supervision order. Both psychiatrists recommended an extension of the supervision order by two to three years. The court also considered the suitability of McKellar's proposed residential address should he be released on the supervision order.

The court concluded that McKellar had contravened the supervision order. However, it found that the adequate protection of the community could be ensured by releasing McKellar on the existing supervision order with suitable amendments. The court extended the duration of the supervision order by 318 days and further amended it to extend the period until 24 November 2022. The court also ordered McKellar's release from custody, subject to the amended supervision order.

The final orders made by the court on 28 April 2020 extended the period of McKellar's supervision order by 318 days to expire on 8 October 2021. The court also amended the supervision order by extending its duration until 24 November 2022 and ordered McKellar's release from custody, subject to the amended supervision order.

Orders

Orders of the court

Orders made on 28 April 2020:

THE COURT being satisfied to the requisite standard that the respondent, Adam Cliffe McKellar, has contravened requirements of the supervision order made by Justice Mullins on 24 November 2014, and amended by Justice Brown on 12 June 2017 and Justice Davis on 18 December 2018‒

DECLARES THAT:

1. The period of the respondent’s supervision order made on 24 November 2014 and amended by Justice Brown on 12 June 2017 and by Justice Davis on 18 December 2018, by operation of s 24(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, is extended by 318 days to expire on 8 October 2021.

ORDERS THAT:

2. The supervision order is amended by omitting in order (i) the words “24 November 2020” and inserting the following underlined words to read:

“(i) The respondent be subject to the following conditions until 24 November 2022”.

3. The respondent be released from custody and continue to be subject to the supervision order made by Justice Mullins on 24 November 2014 and amended by Justice Brown on 12 June 2017, by Justice Davis on 18 December 2018 and this order.

Background

Background to the litigation

Operation of s 22 of the DPSO Act was summarised by Davis J in his reasons delivered on 9 April 2019 as follows:[13]“[12] By s 22, once a contravention is proved, the Court shall rescind the supervision order and make a continuing detention order[14] unless the prisoner satisfies the Court that continuation on supervision in the community (either on the supervision order as it stands, or with amendment) will ensure the adequate protection of the community.[15] It is well established that the concept of ‘the adequate protection of the community’ in s 22(7) has the same meaning as it bears in s 13.[16] Therefore, prisoners facing an application under s 22 must prove that the supervision order will ensure adequate protection of the community by removing unacceptable risk that they will commit a serious sexual offence.[13]Section 22 authorises the variation of a supervision order by extending its duration where that is necessary for the adequate protection of the community.[17][14]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]”[13]See Attorney-General v McKellar [2019] QSC 92 at [12].[14]Section 22(2) DPSO Act.[15]Section 22(7) DPSO Act. [16]Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60]; see also Turnbull v Attorney-General (Qld) [2015] QCA 54 at [36].[17]Attorney-General v Van Dessel [2007] 2 Qd R 1 at [31]; Attorney-General (Qld) v Foy [2014] QSC 304 at [14]. [18]Attorney-General (Qld) v Francis [2012] QSC 275 at [64]-[67]. Background to the present application The respondent is an indigenous man who is currently 29 years of age, having been born on 18 July 1990. The respondent has previously been convicted of the following offences:(a)On 19 January 2006, the respondent was convicted as a juvenile of property offences, dishonesty offences, and possession of dangerous drugs in the Cunnamulla Childrens Court. He was detained but the detention was ordered to be served by way of a conditional release order.(b)In March 2008, the respondent was convicted of one count of rape in the District Court at Beenleigh. The respondent was 16 years old at the time of the offending in 2006. He was sentenced to detention for 966 days but was released taking into account pre-sentence custody.(c)In July 2008, the respondent was convicted and sentenced to probation for 12 months in the Magistrates Court at Charleville for property and weapons offences and obstructing a police officer.(d)In November 2008, the respondent was convicted and sentenced to both a suspended sentence of imprisonment and a sentence of imprisonment in the Magistrates Court at Cunnamulla, with immediate release on parole for further property offences.(e)On 12 March 2010, the respondent was convicted of five counts of indecent treatment of children and two counts of supplying dangerous drugs to minors. He was sentenced to a term of imprisonment on some counts and probation on others and as pre-sentence custody was declared, he was released on probation on the day of sentence.(f)On 22 March 2011, the respondent was sentenced to four years imprisonment for break and enter and rape.

Evidence

Evidence Before The Court

A subsequent issue arose as to the suitability of a proposed residential address should the respondent be released on a supervision order, and whether any amendment to the proposed supervision order was appropriate in the circumstances. The psychiatric evidence Dr Scott Harden prepared a report dated 31 March 2020 to provide a risk assessment in relation to the respondent following his alleged contravention of the supervision order.[24] Dr Harden, in summary, addressed the risk as follows:[24]Exhibit GM-5 of Affidavit of G Morgan sworn 16 April 2020.“The actuarial and structured professional judgement measures I administered would suggest his future risk of sexual reoffence is moderate to high without a supervision order. My assessment of this risk is based on the combined clinical and actuarial assessment. This assessment takes into account all information made available to myself.In my view, the strict supervision associated with a supervision order decrease his risk probably to the low range.The critical issues in this man in my opinion continue to be his previous chaotic antisocial lifestyle, potential for substance misuse, difficulties with interpersonal boundaries and pattern of rule breaking behaviour.In my opinion the contravention associated with the relapse into substance abuse while in the context of emotional collapse as described it may have temporarily increased his risk of recidivism at the time it does not substantially alter his long-term risk of recidivism. He has improved substantially over time particularly in terms of the ability to sustain a prosocial lifestyle for a longer period. Unfortunately, this continues to break down at around about the 12 month period in the community. He is not yet ready for the removal of the protective structure of the supervision order in terms of risk.RecommendationsI would recommend that he be required to be abstinent from alcohol and drug use and undergo an appropriate random testing regime if incarcerated or in the community.I would recommend that he continue with individual psychological therapy with his psychologist.If released his employment and independent living should be resumed as soon as possible.I would recommend that the supervision order be extended by a further two years in order to observe a period of more prolonged stability prior to the removal of this supportive and risk decreasing structure.” Dr Andrew Aboud, psychiatrist, provided a summary of his recommendations by email dated 16 April 2020 as follows:[25]“As you know, Mr McKellar has been re-released to a supervision order on 18/12/18, but was returned to custody on 7/2/20 on a count of failing to provide a urine sample for testing and then providing a urine sample that tested positive to methamphetamine. He has been incarcerated in the Brisbane Correctional Centre since that time. I assessed him in the prison on 13/3/20. My full report will be forwarded to you on Monday 20/4/20. You have requested that I provide a summary of my recommendations prior to that (namely by midday today), and to specifically address:·Whether you consider Mr McKellar can be released back into the community on a supervision order;·Your views of whether Mr McKellar can return to his private residence, which he still has; and·Whether Mr McKellar’s supervision order should be extended, and if yes, for how long.It is my opinion that Mr McKellar’s unmodified risk of sexual reoffending is currently above moderate, but that is modified risk, in the context of a supervision order, would be between moderate and low. I recommend that he could be released back to the community subject to an unamended supervision order. I believe that, upon his release, he could reasonably return to his private residence and to live with his partner who is expecting their first child. It is my understanding that his supervision order is due to expire on 24/11/20. It is my recommendation that the order be extended for a further 2 or 3 years.”[25]Exhibit GM-7 of Affidavit of G Morgan sworn 16 April 2020.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondent’s outline of submissions summarises the respondent’s position as follows:“2. It is conceded by the respondent that it is open for the Court to find that a breach of clause 23 of the supervision order has been established. It is accepted that the onus is therefore on the respondent to demonstrate that the adequate protection of the community is able to be ensured by his release on a supervision order.3.The respondent respectfully submits that the psychiatric evidence demonstrates that the risks of the community posed by the respondent’s release are capable of being managed by his release on supervision. Neither psychiatrist supported any amendment of the existing supervision order, but both supported an extension of the order. The question of the appropriate length of that extension has been canvassed with both psychiatrists, who confirmed that in their opinion an extension of two years from the current expiry date of the order (incorporating the automatic extension of 318 days pursuant to sections 23 and 24 of the Act) would suffice.4.The respondent respectfully submits that the psychiatric evidence supports a finding that he has discharged the onus under the Act. The respondent does not oppose an extension of the supervision order in the terms proposed by the applicant.”Issues for consideration If the court is satisfied that the evidence supports the finding that the respondent has contravened the requirements of the supervision order, in considering the appropriate order to be made the court is then to consider whether the respondent has demonstrated that the adequate protection of the community is able to be ensured by his release on the existing supervision order or suitable amendments. If he is unable to do this, the supervision order ought to be rescinded and a continuing detention order is to be made. In considering the question as to whether the respondent has demonstrated the community could be adequately protected by his release on supervision, two issues arose for consideration:(a)Whether the supervision order should be extended for a period of two to three years; and(b)Where the respondent is to live if released back on the supervision order. In relation to the proposed residential address, the respondent relied on an affidavit of Kerry Belinda Bichel affirmed on 27 April 2020. The real issue to be determined in respect of the proposed residential address is, if the respondent is to be released on a supervision order:(a)Whether it is appropriate to leave the management of the respondent under any supervision order to Queensland Corrective Services as is envisaged under the legislative scheme; or alternatively(b)Whether it is appropriate in the current circumstances that the existing supervision order be amended to provide that he is to reside at a specific residential address. In its supplementary outline of submissions, the applicant did not contend that the respondent should be subject to a continuing detention order. At paragraph 11 of those supplementary submissions, the applicant concludes:“In this case, it is acknowledged that the evidence supports the finding that the respondent has contravened the requirements of a supervision order. The applicant also acknowledges that the evidence of the two psychiatrists supports the release of the respondent on the terms of the existing supervision order. That evidence also recommends that the duration of the supervision order be extended by a period of two to three years.”