Attorney-General for the State of Queensland v Sagiba

[2017] QSC 173

SUPREME COURT OF QUEENSLAND

CITATION:	Attorney-General for the State of Queensland v Sagiba [2017] QSC 173
PARTIES:	ATTORNEY-GENERAL FOR STATE OF QUEENSLAND (applicant) v FRANK SAGIBA (respondent)
FILE NO/S:	SC No 10429 of 2009
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Delivered ex tempore on 31 July 2017
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2017
JUDGE:	Holmes CJ
ORDER:	Application for continuing detention order dismissed.
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 respondent has repeatedly contravened a supervision order – whether the existing supervision order can ensure adequate protection of the community.
COUNSEL:	J B Rolls for the applicant S Robb for the respondent
SOLICITORS:	Crown Law for the applicant Legal Aid Queensland for the respondent

1. HOLMES CJ:    The Attorney-General applies under section 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 for the revision of a supervision order made on 16 December 2009 in respect of the respondent, Mr Sagiba, and the making of a continuing detention order.

2. The respondent is 37 years old.  Between 1998 and 2002, when he was between 18 and 23 years old, he committed a number of offences.  In 1999, he committed a series of offences which involved watching his victims, then breaking into their homes and committing indecent assaults on them, which led to his being imprisoned for four years.  In 2003, he was sentenced to seven years’ imprisonment for like offences, but these included rape as well as sexual assault.  There was a single rape which involved digital penetration.  All of his victims were adult women.  He had been a long-term user of marijuana, and it is said that when he offended he was intoxicated by alcohol and marijuana.

3. Justice Fryberg, in making the original supervision order, noted the significance in the respondent’s behaviour of his excessive use of alcohol and drugs and imposed a requirement that the respondent abstain from using illicit drugs.  The order contained the general requirement that the respondent comply with reasonable directions of Corrective Services officers.  The respondent has subsequently contravened that order repeatedly, but on each occasion the judge dealing with the breach has been satisfied that the order in its existing form or as amended could nonetheless adequately ensure community protection. 

4. Those contraventions were as follows.  In April 2010, the respondent ingested cannabis, as was revealed by cannabinoids in his urine.  In February 2012, he was given a direction not to ingest synthetic substances which might have hallucinatory or mood altering effects.  In May 2012, he contravened the order by disobeying that direction, having used a herbal mixture with that effect.  On this occasion, the contravention being proved in February 2013, he was released from custody on an amended supervision order which now contained a requirement that he comply with a curfew or monitoring direction.

5. In May 2013, he failed to comply with that direction by failing to carry his GPS tracker.  At the time, he was at his psychologist’s rooms and was told to remain there, but did not and was subsequently apprehended.  In November 2013, he breached the requirement that he abstain from illicit substances, by ingesting cannabis.  In February 2014, he was once more released.  At this time, he was directed not to ingest any synthetic substance with similar effect to illicit drugs.  Again, urinalysis showed that he had used a herbal mixture of that kind.  In February 2015, he removed a global positioning device and was in an area where he was not permitted to be.  The time period was extremely brief, about half an hour.

6. The seventh contravention involved his use of cannabis, revealed through urine sample in July 2016.  In that connection, he was released in August 2016 after a finding of the contravention.  The judge noted his apparent disinclination to abide by the supervision order but found that he had not reached the point at which his Honour could not be satisfied that the supervision order could ensure adequate protection to the community.  However, his Honour observed that the respondent should be made to understand that any further contravention could lead to the setting aside of the supervision order and his return to custody.  At that stage, the two psychiatrists who had regularly reviewed the respondent’s case, Drs Grant and Harden, did not regard the respondent’s contraventions as affecting their assessment of risk.

7. The current alleged contravention falls into a similar pattern.  In February 2017, the respondent’s urine samples were found to be positive to cannabis.  He has been detained since that time.  There is no dispute about the contravention, and I am satisfied on the balance of probabilities that the respondent has contravened requirement 26 of his supervision order, which requires him to abstain from illicit drugs.  The question now is whether the respondent can satisfy me on the balance of probabilities that the adequate protection of the community can nonetheless be ensured by the supervision order in its existing form.  There is no proposal for its amendment.

8. Both Dr Grant and Dr Harden consider the respondent suffers from bipolar disorder, is given to alcohol and marijuana abuse, and exhibits a personality disorder with antisocial and narcissistic traits and sexual paraphilia which Dr Harden characterises as voyeurism and Dr Grant as a combination of voyeurism and sexual fantasising, leading to his past offending.  Dr Grant considers that the respondent currently poses a moderate to high risk for future sexual offending, with a potential for the risk to become high with more regular use of drugs or alcohol.  He notes that the respondent has made little progress in any sort of rehabilitation or behavioural change.  The advantage of the supervision order has been that it has prevented the respondent from regular substance abuse, but the inability to achieve rehabilitation means that the long-term reduction of risk is, as he expresses it in his report, “somewhat doubtful”.

9. Nonetheless, Dr Grant accepts that the existence of the order does reduce the risk to low, assuming a level of compliance.  He suggested that the respondent should remain in custody and complete a “Pathways Program” to treat his substance abuse.  Corrective Services has indicated that the program is not considered appropriate for someone who is a low intensity user like the respondent, but Dr Grant regards it as more effective than a program which could be undergone in the community, because it is more intensive. 

10. Dr Grant, as I have said, is concerned with the risk that the respondent would pose, were he to use cannabis regularly and heavily.  He acknowledges, however, that it has not been a routine event for the respondent to turn to cannabis when under stress, although one of his considerations was that the stress of community living might explain his use in the past instances.  Really, his greater concern is that the longer-term risk of regular use will arise at the end of the order if the respondent is not by then in control of his drug use. 

11. Dr Harden, on the other hand, does not think that this incident of marijuana use substantially changes the risk that the respondent poses.  He regards the supervision order and the supports that it provides as effective in reducing the risk of sexual offending to a moderate level.  He characterises the respondent as using small amounts of cannabis when unhappy.  To have a significant effect on risk, there would need to be a chronic use by the respondent.  He is doubtful about the effectiveness of substance abuse programs, whether in or out of custody, in reducing abstinence in a case such as the respondent’s.

12. Returning, then, to the question of adequate protection of the community and whether it can be achieved by the existing order, it is fairly clear that Dr Grant’s concern, and his preference for a continuing detention order, are premised on the notion that then the respondent will be able to complete the more intensive program with better prospects at the end of the order.  What he identifies as the risk is that at the end of the existing order, if the respondent has not overcome his tendency to turn to cannabis, the problem will be as to whether he may reoffend because he will relapse into a much higher and more regular level of use. 

13. The proposition raises an interesting statutory construction point which was not really explored by counsel, which is whether it is community protection at the present time, or over the longer term when the order expires, with which I need to be concerned for the purposes of section 22. I am inclined to think that it is the former, because the premise for triggering the operation of the legislation in section 13 is that the person concerned is a serious danger in the present tense. But it is not critical, in this case, that I reach a firm view on the matter, because it seems to me that there is a very significant doubt attending the effectiveness of a substance abuse program in the respondent’s case, whether that is undertaken in or out of custody. And the notion that there might be some rehabilitative effect with long-term implications in detaining him for that purpose, I think, is doubtful as a matter of fact; but it is also, as a matter of principle, questionable, given the statement in Francis that the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised the constraint.

14. The applicant’s argument is, essentially, that the respondent’s use of cannabis or synthetic analogues increases the risk he poses of committing a serious sexual offence.  His continued returns to detention reduce any prospect of rehabilitation, although the supervision order conditions have resulted in relatively prompt detection of the use of cannabis and over substances.  If there were some slippage in Corrective Services management of his supervision, that might not always be the case.  The result, on the applicant’s contention, is that the respondent has not discharged the burden of showing that adequate protection can be ensured by his release on a supervision order.

15. For the respondent, it is pointed out that none of his contraventions have involved any sexual assault.  It is 15 years since he committed an offence of that kind.  He was then in his early 20s.  He has managed to exercise sufficient control on these orders to reduce a level of use of cannabis and like substances from what was chronic to irregular instances. 

16. I am satisfied that the existing order provides adequate community protection.  I am impressed by the fact that the respondent has not offended in any like way to the index offending during the period of the order or done anything suggestive of the likelihood of such offending.  The order has been effective in detecting substance abuse promptly.  I do not think it appropriate to proceed on the premise that there will be some mismanagement which prevents that from occurring.  Both psychiatrists agree that the order as it exists effectively very much reduces the risk of reoffending to a low level.  On all those bases, then, I am satisfied, as I have said, that adequate community protection is provided by the existing order, and I dismiss the application for a continuing detention order.