Attorney-General for the State of Queensland v O'Connor

Case [2021] QSC 106

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v O’Connor [2021] QSC 106

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
PETER BRIAN O’CONNOR

(respondent)

FILE NO/S:

BS No 3554 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

Orders made on 12 April 2021, reasons delivered on 28 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2021

JUDGE:

Davis J

ORDERS:

The court being satisfied to the requisite standard that the respondent Peter Brian O’Connor has contravened requirement 26 of the supervision order made on 24 August 2020 orders that:

1.    The respondent, Peter Brian O’Connor, be released from custody and be subject to the supervision order made on 24 August 2020.

And further:

2.    The court directs that the report of Dr Elizabeth Ness McVie dated 6 February 2021 and the reports of Dr Josephine Sundin dated 18 February 2021 and 16 March 2021 respectively, be released to any treating practitioner providing psychological or psychiatric treatment to the respondent.

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 on 24 August 2020 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 consumed Buprenorphine in contravention of the supervision order - where the respondent admitted the contravention - where the psychiatric evidence was to the effect that the adequate protection of the community could be ensured by the release of the respondent on the supervision order notwithstanding the contravention - whether that was so - where the psychiatrists in their reports suggested further treatment of the respondent - whether those reports ought to be provided to any treating practitioner providing psychological or psychiatric treatment

Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s 3, s 5, s 13, s 14, s 15, s 16, s 20, s 22, s 27, s 30

Attorney-General (Qld) v Fardon [2013] QCA 64, followed
Attorney-General v Francis [2007] 1 Qd R 396, followed
Attorney-General (Qld) v Francis [2012] QSC 275, followed
Attorney-General v Lawrence [2010] 1 Qd R 505, followed
Attorney-General for the State of Queensland v O’Connor [2020] QSC 396, related
Attorney-General (Qld) v Yeo [2008] QCA 115, followed
Kynuna v Attorney-General (Qld) [2016] QCA 172, followed
LAB v Attorney-General [2011] QCA 230, followed
Attorney-General for the State of Queensland v Ellis [2012] QCA 182, followed
Turnbull v Attorney-General (Qld) [2015] QCA 54, followed

COUNSEL:

J Rolls for the applicant

S Robb for the respondent

SOLICITORS:

GR Cooper, Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

  1. Peter Brian O’Connor has been the subject of a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) since 24…

Continue reading Attorney-General for the State of Queensland v O'Connor

Sign in free to access the full text

Details
AGLC
Attorney-General for the State of Queensland v O'Connor [2021] QSC 106
Case
[2021] QSC 106
Decision Date

CaseChat Overview and Summary

The case of Attorney-General for the State of Queensland v O'Connor involved a dispute over the enforcement of a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The respondent, Mr O'Connor, had a significant criminal history involving sexual offences against children and was subject to a supervision order to ensure the adequate protection of the community. The dispute centred on whether Mr O'Connor had contravened the supervision order by consuming Buprenorphine, an illegal drug. The court was required to decide whether the adequate protection of the community could still be ensured by the release of Mr O'Connor on the supervision order, despite the alleged contravention.

The court considered psychiatric evidence from Dr Josephine Sundin and Dr Elizabeth McVie, which suggested that Mr O'Connor's risk of recidivism for sexual violence and general criminal offending remained high but could be reduced by compliance with the supervision order. Both psychiatrists recommended further treatment for Mr O'Connor, including individual psychology treatment, community-based Sexual Offenders Maintenance Program, and structured education or employment. The court accepted the evidence of the psychiatrists and found that the adequate protection of the community could be ensured by the release of Mr O'Connor back onto the supervision order, notwithstanding the contravention. The court noted that the supervision order had already detected the ingestion of illicit substances and taken appropriate action, thus fulfilling its function as a tool through which the adequate protection of the community is ensured.

In conclusion, the court found that Mr O'Connor had contravened the supervision order but that the adequate protection of the community could still be ensured by his release on the supervision order. The court directed that the reports of the psychiatrists be released to any treating practitioner providing psychological or psychiatric treatment to Mr O'Connor. The court ordered that Mr O'Connor be released from custody and be subject to the supervision order made on 24 August 2020. The court also directed that the reports of Dr Elizabeth Ness McVie and Dr Josephine Sundin be released to any treating practitioner providing psychological or psychiatric treatment to Mr O'Connor.

Orders

Orders of the court

The court being satisfied to the requisite standard that the respondent Peter Brian O’Connor has contravened requirement 26 of the supervision order made on 24 August 2020 orders that:

1. The respondent, Peter Brian O’Connor, be released from custody and be subject to the supervision order made on 24 August 2020.

And further:

2. The court directs that the report of Dr Elizabeth Ness McVie dated 6 February 2021 and the reports of Dr Josephine Sundin dated 18 February 2021 and 16 March 2021 respectively, be released to any treating practitioner providing psychological or psychiatric treatment to the respondent.

Background

Background to the litigation

These are my reasons for making those orders.Background Mr O’Connor was born on 18 April 1979. He is therefore 42 years of age. Mr O’Connor has a significant criminal history involving offences of a sexual nature against children. He was convicted of various such offences in New South Wales in 2005 and served about six years imprisonment. In 2014, he made contact with his father who was living in Townsville. Living with Mr O’Connor’s father was Mr O’Connor’s stepsister who was 10 years of age. Mr O’Connor indecently dealt with her by exposing his penis to her on several occasions, pulling down her pyjama pants and showing her an indecent cartoon on an iPad. In an unrelated incident, he exposed himself to two 12 year old girls who were travelling to school on a bus. He was sentenced to four years imprisonment. That was the offending which brought Mr O’Connor within the provisions of the DPSOA. In addition to the New South Wales offence that I have mentioned and the offending in Townsville, Mr O’Connor has a long criminal history for offences with a sexual element, dishonesty offences and offences of violence. On 14 September 2018, Burns J made a continuing detention order against Mr O’Connor.[2][2]Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(5)(a). The continuing detention order was reviewed[3] by Bradley J who on 24 August 2020:(a)affirmed the decision of Burns J that Mr O’Connor was a serious danger to the community in the absence of a Division 3 order;[4](b)rescinded the continuing detention order made by Burns J;[5](c)released Mr O’Connor subject to a supervision order. The supervision order contained condition 26 in these terms:“26.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.”[3]Sections 27 and 30.[4]Section 30(1).[5]Section 30(5). On 10 November 2020, Mr O’Connor was arrested pursuant to a warrant issued under s 20 of the DPSOA upon an allegation that he had contravened condition 26 of the supervision order. The particulars of the contravention, as they appear in the application filed by the Attorney-General seeking orders under s 22 of the DPSOA, are as follows:“On 9 November 2020, the respondent was directed to submit to a urinalysis test in accordance with the conditions of his supervision order.During the urinalysis test, the respondent disclosed illicit intravenous use of Buprenorphine on 8 November 2020 and showed Queensland Correct Services (QCS) staff a needle mark on his left arm. Upon further challenging by QCS staff, the respondent stated he had injected Morphine on 8 November 2020. The respondent advised QCS staff that he ‘found’ the substance.The respondent provided a urine sample for testing. The sample was presumptively positive to Buprenorphine. The sample was sealed and sent for confirmatory testing.On 10 November 2020, a confirmatory report was received detecting Buprenorphine at a level of 6ug/L (cut off 2ug/L).Queensland Correct Services have advised that the respondent has tested positive to Buprenorphine on four prior occasions since admission to the supervision order and has been afforded the opportunity to address his substance abuse via treatment prior to more formal contravention action taking place. The respondent has used non-prescribed Buprenorphine despite being engaged in substance abuse counselling with Drug Arm and ongoing treatment with a forensic psychologist.”Statutory context

Evidence

Evidence Before The Court

By s 22, once a contravention is proved, the court must rescind the supervision order and make a continuing detention order[16] unless the prisoner satisfies the court their continuation on supervision in the community will ensure the adequate protection of the community.[17] 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.[18] A prisoner 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. However, the issue under s 22 of the Act is not whether there is an unacceptable risk that the prisoner will breach the supervision order. The issue is whether there is an unacceptable risk that he will commit a serious sexual offence.[19] [16]Section 22(2).[17]Section 22(7).[18]Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60]; see also Turnbull v Attorney-General (Qld) [2015] QCA 54 at [36].[19]Attorney-General (Qld) v Francis [2012] QSC 275 at [64]-[67].Expert evidence as to risk For the purposes of the present application, Mr O’Connor was interviewed by psychiatrists Dr Josephine Sundin and Dr Elizabeth McVie. Dr Sundin confirmed diagnoses that she had previously formed in relation to Mr O’Connor. She said in her report:“My formerly tendered diagnoses (DSM V) for Mr O’Connor have not changed.I consider that he exhibits evidence of two clear paraphilias in the form of Exhibitionism and Paedophilia.These occur in a man with an Anti-social Personality Disorder who meets the criteria for Psychopathy and Substance Use Disorder - opioids.My previous assessment that his Substance Use Disorder was in sustained remission is clearly incorrect, given Mr O’Connor’s admission that he had been using opioids regularly in prison prior to his release from incarceration.I remain of the opinion that he would have met the criteria for Conduct Disorder in childhood.I doubt the diagnosis of Attention Deficit Hyperactivity Disorder, and consider that there is insufficient collateral information to support that diagnosis.” Dr McVie identified several paraphilias including exhibitionism, voyeurism, and an interest in troilism.[20] She thought that Mr O’Connor may also suffer from hebephilia.[21][20]A sexual activity in which three people take part.[21]A sexual interest in pre-pubescent persons, in this case, females. Both doctors considered risk. Of some concern was an alleged sexual assault said to have been committed by Mr O’Connor upon another inmate at the Wolston Correctional Centre in August 2020. That remains unsubstantiated. As to risk, Dr McVie opined:“Current risk assessment, actuarial and structured professional judgement, continues to indicate he remains at high risk of recidivism for sexual violence and for general criminal offending. This will not change in the short term. A Supervision order will continue to reduce this risk to low while be remains compliant with the order. His recent contravention has not increased this risk. Mr O’Connor requires continued individual treatment tailored to his learning capacity, to manage both his sexual offending and his substance abuse. While I have concerns about opioid replacement therapy treatment for substance use, I note that the QCS records indicate he was more relaxed and amenable during the week in which he would have been using buprenorphine, suggesting a reflection of the drug effects on him. If it is possible to place him on a depot (injectable) form of Suboxone, and this can be monitored regularly such that his urine drug tests will not conceal any other substance use, then it may be worthwhile trialling him on this program. This may decrease his high risk of relapse into substance use.I would strongly advise that he be referred to a psychiatrist for ongoing review of symptoms and management of any prescribed medication. He has a complex history, has attracted multiple previous diagnoses, and by his self-report, may have previously experienced psychotic symptoms on both cannabis and amphetamine. I would recommend he be referred to a psychiatrist with expertise in addiction psychiatry for assessment and management. I reinforce my previous recommendations that he will need careful monitoring of his adjustment to this supervision. His risks will be elevated if he has difficulty coping with his environment or experiences any significant external stressors such as the loss of a close family member; or not being allowed supervised access to his daughter. I also recommend that he attend a community based Sexual Offenders Maintenance Program in addition to his individual psychology treatment. He should be engaged in some structured education program or employment. There was mention of outstanding warrants in NSW. These may be in relation to breaches of his reporting conditions or for some other matters. It would be useful to know if these warrants exist as they may impact his longer term planning. In addition to programs in drug and alcohol, he would also benefit from programs to address domestic violence, anger management and a specific violence reduction program.”

Decision

Reasons for decision

The Attorney-General seeks a finding that the supervision order has been contravened. She accepts that it is open on the evidence to find that Mr O’Connor has discharged the onus cast upon him pursuant to s 22(7) of the Act, namely that the adequate protection of the community can be ensured by his release on supervision notwithstanding the contravention.Conclusions I find that the Attorney-General has proved the alleged breach of the supervision order. I accept the evidence of the psychiatrists and I find that the adequate protection of the community can be ensured by the release of Mr O’Connor back onto the supervision order notwithstanding the contravention. While Mr O’Connor’s risk for future sexual offending remains high if unsupervised, he has completed various sexual offender treatment programs in custody and a low intensity substance intervention program. Further treatment is contemplated all of which, as the psychiatrists opine, lower risk. While the ingestion of illicit substances no doubt increases Mr O’Connor’s risk of committing serious sexual offences, the supervision order has operated so that the ingestion was quickly detected and action taken. The supervision order is therefore fulfilling its function as a tool through which the adequate protection of the community is ensured. As is apparent, the two psychiatrists have recommended further treatment for Mr O’Connor and their reports should be released to any treating practitioner providing psychological or psychiatric treatment to Mr O’Connor. For those reasons, I made the orders which I did.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.