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

Case [2020] QSC 396

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v O’Connor [2020] QSC 396

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
PETER BRIAN O’CONNOR

(respondent)

FILE NO/S:

BS 3554 of 2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED EX TEMPORE ON:

Orders made and reasons delivered on 24 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2020

JUDGE:

Bradley J

ORDER:

THE ORDER OF THE COURT IS THAT:

1. Pursuant to s 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”), the decision made on 14 September 2018, that the respondent is a serious danger to the community in the absence of a division 3 order, is affirmed.

2. Pursuant to s 30(5) of the Act, the continuing detention order made on 14 September 2018 be rescinded upon release of the respondent from custody in accordance with paragraph 3 of this order.

3. Pursuant to s 30(3)(b) of the Act, the respondent be released from custody on or before 10 am on 25 August 2020 subject to a supervision order for a period of 5 years until 25 August 2025, with the requirements as set out in the schedule to 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 the applicant seeks a continuing detention order in respect of the respondent – where the respondent’s pattern of sexual offending is extensive and diverse – where both psychiatrists consider that the respondent presents a high risk of sexual reoffending – whether the court is satisfied that the respondent remains a serious danger to the community in the absence of an order – whether the court should make any other orders – where the paramount consideration is the need to ensure the adequate protection of the community – where the respondent has multiple convictions for breaches and non-compliance with previous supervision orders – where one of the consultant psychiatrists expressed the view that the respondent’s risk of sexual recidivism does not appear to be able to be modified or managed by a supervision order – where the court is satisfied that the respondent is a serious danger to the community in the absence of an order under division 3 of the Act – where the courts have interpreted the legislative scheme to give preference to a supervision order over a continuing detention order – where the attention given to the subject matter of each condition is such that the respondent’s risk of sexual reoffending is managed – where the court is satisfied that a supervision order would be efficacious in constraining the respondent from committing serious sexual offences.

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(5)(a), s 27

Attorney-General v Francis [2006] QCA 324, followed

COUNSEL:

J Rolls for the applicant
S Robb for the respondent

SOLICITORS:

GR Cooper, Crown Solicitor for the applicant

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Attorney-General for the State of Queensland v O'Connor [2020] QSC 396
Case
[2020] QSC 396
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Queensland, the Attorney-General for the State of Queensland applied for a continuing detention order in respect of Mr O'Connor, a serious sexual offender with a history of extensive and diverse sexual offending. The court was required to determine whether Mr O'Connor remained a serious danger to the community in the absence of an order under Division 3 of the *Dangerous Prisoners (Sexual Offenders) Act 2003* and whether the court should make a supervision order or a continuing detention order. Both psychiatrists considered Mr O'Connor to present a high risk of sexual reoffending, with potential victims including children and adult women. The court affirmed that Mr O'Connor was a serious danger to the community without a Division 3 order.

The court considered the evidence, including Mr O'Connor's criminal history and the psychiatrists' assessments. The court noted that while there was no clear pattern to his offending, there was an underlying propensity to offend against female children. The court found that Mr O'Connor remained a serious danger to the community in the absence of a Division 3 order, and the previous order made by Burns J on 14 September 2018 should be affirmed. The paramount consideration in this hearing was the need to ensure adequate protection of the community. The court concluded that a supervision order would be efficacious in constraining Mr O'Connor's behaviour by preventing the opportunity for him to commit sexual offences and providing for mechanisms that would detect any deterioration in his conduct. The court was satisfied that a supervision order would be efficacious in managing the risk of Mr O'Connor reoffending.

The court decided that a supervision order should be imposed for a period of five years, with regular reviews to monitor Mr O'Connor's progress. The court noted that the scheme established under the Act provided for regular reviews of persons who are the subject of supervision orders, allowing for monitoring and reconsideration of Mr O'Connor's progress. The court concluded that a supervision order would provide adequate protection in that respect. The court ordered that Mr O'Connor be released from custody on or before 10 am on 25 August 2020, subject to a supervision order for a period of five years until 25 August 2025, with the requirements set out in the schedule to the court's reasons. If Mr O'Connor breached any of the rules in the supervision order, the police or Queensland Corrective Services had the power to arrest him, and the court might order that he go back to prison.

Orders

Orders of the court

THE ORDER OF THE COURT IS THAT:

1. Pursuant to s 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”), the decision made on 14 September 2018, that the respondent is a serious danger to the community in the absence of a division 3 order, is affirmed.

2. Pursuant to s 30(5) of the Act, the continuing detention order made on 14 September 2018 be rescinded upon release of the respondent from custody in accordance with paragraph 3 of this order.

3. Pursuant to s 30(3)(b) of the Act, the respondent be released from custody on or before 10 am on 25 August 2020 subject to a supervision order for a period of 5 years until 25 August 2025, with the requirements as set out in the schedule to these reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr O’Connor accepts that the evidence supports a finding that he is a serious danger to the community in the absence of a division 3 order. Both the psychiatrists identify that Mr O’Connor presents a high risk of sexual reoffending. The types of offences that he would commit, that are assessed for the purpose of this risk, could be offences against a child, although adult women are also, according to the consultant psychiatrists, at risk. Consideration of the evidence When considering whether there is any propensity or pattern to a person’s offending, it is appropriate for the Court to have regard to that person’s criminal history. In the case of Mr O’Connor, that criminal history makes it difficult to identify a pattern. The applicant submits that there is an underlying pattern to Mr O’Connor’s offending, which might be regarded as propensity, so that it could be said that he has a propensity to offend against female children. I am satisfied in the circumstances, on the evidence put before the Court, that Mr O’Connor remains a serious danger to the community in the absence of an order and therefore that the order made in that respect by Burns J on 14 September 2018 should be affirmed. The next question is what other order the Court should make on this occasion.Should a supervision order be made? The paramount consideration in this hearing is the need to ensure adequate protection of the community. As the respondent’s counsel, Ms Robb, submitted, the Court must consider whether adequate protection of the community can be reasonably and practicably managed by a supervision order and whether the requirements of the Act can be reasonably and practicably managed by those officers in the corrective services who will be charged with it. Of course, a supervision order does not have to be risk free in order for it to be made. The Court of Appeal observed in Attorney-General v Francis [2006] QCA 324 at [39] that:“…an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.” In that case, the Court had before it evidence that supervision of the prisoner was apt to ensure adequate protection. Dr McVie has addressed this question in her report observing that:A supervision order would reduce the risk of Mr O’Connor reoffending in the relevant respect to from high to low while he was complying with the order. Dr McVie noted that Mr O’Connor’s multiple convictions for breaches and non-compliance with previous orders including apprehended violence orders, bail orders and requirements to appear. Compliance with any supervision order will be a challenge for him and for those managing him but, if he is compliant with it, it will have the effect that the Act seeks to achieve of reducing the risk of reoffending in the relevant way.

Decision

Reasons for decision

Dr Sundin expressed a view that the supervision order should operate for a period of five years. Of course, that is a matter for the Court to determine rather than for the expert witnesses. Neither of the psychiatrists gave evidence that if Mr O’Connor complied with a supervision order for a period of five years, he would no longer pose an unacceptable risk to the community. However, I take into account the fact that the scheme established under the Act provides for regular reviews of persons who are the subject of supervision orders so that there can be a process by which Mr O’Connor’s progress would be monitored and the court would then have an opportunity to reconsider Mr O’Connor’s progress as the period of any order made today draws to a close.Conclusions On the basis of the evidence adduced in this hearing, I am satisfied that Mr O’Connor is a serious danger to the community in the absence of an order under division 3 of the Act. By that, I mean that there is an unacceptable risk that he would commit a serious sexual offence if he were released from custody without a supervision order being made. In reaching this conclusion I have given paramount consideration to the need to ensure adequate protection of the community. I am satisfied that there is an unacceptable risk that he will commit a serious sexual offence if he were to be released without such an order. I am conscious that the Courts have interpreted this legislative scheme in a way that gives preference to a supervision order over a continuing detention order. I am comforted by the attention that each relevant expert witness has given to the subject matter of conditions to reach a conclusion that the risk may be managed by the imposition of conditions in a supervision order. It is on this basis that I have reached the view that a supervision order would be efficacious in constraining Mr O’Connor’s behaviour by preventing the opportunity for him to commit sexual offences and providing for mechanisms that would detect any deterioration in his conduct. I have reached the positive conclusion that a supervision order will provide adequate protection in that respect. For Mr O’Connor this will be a journey that may take five years or longer. This will require that he progress from his present circumstances, so that he is no longer a serious danger to the community in the absence of an order either detaining him or supervising him. He is a relatively young person. He should commit to a period of supervision, support, monitoring and treatment with a view to preparing and fitting himself to live the second half of his life in a dramatically different way to the first half. You are being released from prison but only if you obey the rules in this supervision order. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison. You must obey these rules for the next 5 years.

Ratio Decidendi

Legal Principle Established

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