Attorney-General for the State of Queensland v NYZ

[2024] QSC 243

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v NYZ [2024] QSC 243

PARTIES:

Attorney-General for the State of Queensland

(applicant)

v
NYZ

(respondent)

FILE NO/S:

BS11360/24

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

15 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2024

JUDGE:

Callaghan J

ORDER:

1. Pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent, NYZ, be detained in custody for an indefinite term for control, care or treatment.

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 seeks, under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), to detain the respondent in custody for an indefinite term, for care, control or treatment – where the respondent does not oppose the order – continuing detention order made

COUNSEL:

J Tate for the applicant

C Reid for the respondent

SOLICITORS:

Crown Law for the applicant
Legal Aid Queensland

1. The respondent has paedophilia.

2. Further, he suffers from a personality disorder which has to date apparently prevented him from facing this reality. Substance abuse is also an issue.

3. As a result, he is a danger to the community and will, in all likelihood, remain in custody until he makes an effort to demonstrate that he can reduce the risks that he poses to children.

   Background

4. The applicant’s criminal history is summarised below:

Date	Description of offence	Sentence
District Court Southport 24/10/1995	·     Indecent assault with circumstances of aggravation (btw 08/01/1994 and 16/01/1994)	Conviction recorded. Probation for a period of two years
	·     Indecent assault with circumstances of aggravation (btw 15/01/1994 and 26/01/1994) (2 charges)	Convicted and sentenced to 18 months imprisonment to be suspended forthwith with an operative period of two years.
District Court Ipswich 18/03/2011	·     Indecent treatment of children under 16, child under 12 years lineal descendant/guardian/carer (on or about 15/05/2010)	Convicted and sentenced to 30 months imprisonment. Declare that time spent in pre-sentence custody be deemed as time already served under this sentence (40 days) Parole eligibility fixed at 07/12/2011
District Court Southport 06/12/2017	·     Maintain unlawful relationship with a child (between 31/12/1995 and 09/03/2003 and between 31/12/2007 and 17/05/2010) (2 charges)	Convicted and sentenced to 9 years imprisonment
	·     Grooming child under 16 years with intent to procure engagement in a sexual act (between 01/08/2013 and 01/03/2014 and between 31/10/2014 and 23/10/2015) (2 charges)	Convicted and sentenced to 3 years imprisonment
	·     Indecent treatment of children under 16 (between 24/01/2014 and 25/03/2015)	Convicted and sentenced to 5 years imprisonment. Declare that time spent in pre-sentence custody be deemed as time already served under this sentence (776 days) Parole eligibility fixed at 21/04/2020

1. When sentenced in October 1995 the respondent was just 19 years of age. The victim was his 13 year old nephew. The offences involved sexual touching, oral intercourse and ejaculation The respondent initially denied the allegations, but later pleaded guilty.

2. The sentence imposed in March 2011 was for offending that was preceded by the befriending of his 10 year old victim, on whom the respondent performed fellatio. He pleaded guilty to this offending.

3. The sentences imposed in December 2017 were for offences against five victims, including his own son. Commonly, the respondent would befriend, gain the trust of, and “groom” his victim. The physical act included all touching/masturbation causing a victim to ejaculate. There was also an attempt at digital penetration.

4. The respondent pleaded guilty to the offending as well.

5. The applicant was, at this time, sentenced also for failing to report much of his activity – electronic and otherwise – that was associated with his offences against the victims.

   In prison

6. The respondent began the Medium Intensity Sexual Offending Program (MISOP) that is offered to sexual offenders in custody. He completed 21 of the prescribed 38 sessions. Otherwise, he did nothing to address his paedophilia. He did not participate in any other sexual offender treatment program, did not apply for parole, and has apparently (and notwithstanding his guilty pleas – some of which were late, but were nonetheless freely entered) maintained his innocence with regards to almost all of his convictions for sexual offending.

   The application

7. The Attorney-General seeks orders under Part Two Division Three (section 13) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). The primary submission is that the respondent should be detained in custody for an indefinite term for control care or treatment – that is, for a continuing detention order. In the result, it is not necessary to consider the alternative submission.

8. The application is brought on the basis of evidence that I accept is cogent. It takes the form of opinions from three consultant psychiatrists, Dr Brown, Dr Timmins, and Dr Phillips.

   Dr Brown

9. Dr Brown interviewed the respondent on 18 April and 23 May 2024. She noted that there was chronicity, frequency and escalation to his offending, notwithstanding intervention by the criminal justice system. He exhibits denial and other cognitive distortions in relation to almost all of the offending. These problems of self-awareness create a risk of sexual offending in the future.

10. The respondent has “significant psychopathic traits” and is a “relatively versatile criminal offender” who has committed many non-sexual offences. Of some relevance for current purposes is the fact that he has exhibited major non-compliance with court orders, and regards them as an exercise in “setting people up to fail”.

11. Dr Brown assessed the respondent as posing a “well above average or high range” risk of recidivism, and doubted whether he would adhere to the conditions of any order made.

    Dr Timmins

12. Dr Timmins was also of the opinion that the respondent would be a high risk of reoffending if released into the community. She viewed the respondent as “effectively a recidivist sex offender who … has poor insight with a paraphilia interest in underaged and teenage males”. The doctor was of the view that the respondent required treatment with an intensive sexual offender program and potentially individual psychological sessions prior to his release. Dr Timmins observed, in evidence today, that the respondent was arrogant, deceptive and had no regard for community orders. At present, the doctor was not convinced that any sort of supervision order could be effective at managing his risk of sexual reoffending.

    Dr Phillips

13. Dr Phillips concluded that the respondent is “essentially an untreated sexual offender”. It was noted that he had engaged in the MISOP, but that this was not completed, which was something which increases rather than decreases the risk that he poses to the community. It was noted to be positive that he had commenced an individual offence specific intervention, but this did not mean there was meaningful reduction in risk at this time. Dr Phillips, too, thought that it was difficult to have confidence that a supervision order would significantly reduce the risk of serious sexual offending. If the respondent was to be released from custody under such an order, her opinion was that his risk of sexual reoffending would remain in the moderate to high range.

    Conclusions

14. Each of the doctors expressed thoughts about the way forward for the respondent, and affidavit material filed on behalf of Queensland Corrective Services demonstrates that the rehabilitation of the respondent remains a concern for the authorities. He has, as recommended, at least commenced one on one treatment with a psychologist.

15. There is, however, at present small purpose served by any detailed consideration of the materials relevant to these efforts. I note only that the opinions have been thorough and that these considerations bring to them an element of balance, such that I can be confident that there are no concerning omissions from the evidence on which this particular application must be decided.

16. NYZ has been able, in today’s hearing, to listen to all that has been said in evidence by the doctors and that has hopefully had some effect. He has, apparently – and only recently – expressed some motivation to engage with treatment. This is barely a step in the right direction. However, if the respondent continues to address the issues identified, it may be that future applications will demand a wider review of materials. I do record the respondent’s concern about his placement within the QCS system as a result of a complaint he has made. It is to be hoped that these circumstances will not have an adverse impact on the availability of the treatment that, so all of the doctors concurred, he so pressingly needs.

17. It can be accepted that the court has a discretion, but on the evidence received there is little if anything to weigh in the balance that might divert the discretion from being exercised other than in favour of the applicant’s primary contention. It is certainly not open, on the evidence, for the respondent to discharge the onus of demonstrating that a supervision order would afford adequate protection to the community. As much was conceded by the respondent’s counsel who made no submissions opposing the application. The respondent will have to be detained under the Act for care treatment or control.

18. Being satisfied to the requisite standard that the respondent, NYZ, is a serious danger to the community in the absence of a Division 3 Order, I order that pursuant to section 13 (5) (a) of the Act, the respondent, NYZ, be detained in custody for an indefinite term for control, care or treatment.