Attorney-General for the State of Queensland v Sampton

Case [2020] QSC 40

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Sampton [2020] QSC 40

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
HOSEA SAM SAMPTON

(respondent)

FILE NO/S:

BS No 4597 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Order made on 6 March 2020, reasons delivered on 13 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2020

JUDGE:

Davis J

ORDER:

The respondent be released from custody and continue to be subject to the requirements of the supervision order of Applegarth J dated 17 October 2016.

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 with respect to the respondent under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) – where it was alleged that the respondent contravened a requirement of the supervision order – where a warrant was issued for the arrest of the respondent pursuant to the Act and the respondent was detained in custody – where the respondent has previously been the subject of proceedings for contravention of the supervision order – where the applicant sought orders under s 22 of the Act – where the respondent had not committed any further serious sexual offences – whether the adequate protection of the community could, despite the contravention of the order, be ensured by the existing supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 2, s 3, s 5, s 13, s 14, s 15, s 16, s 20, s 21, s 22, s 43AA

Attorney-General for the State of Queensland v Ellis [2012] QCA 182, cited
Attorney-General (Qld) v Fardon [2013] QCA 64, cited
Attorney-General v Francis [2007] 1 Qd R 396, followed
Attorney-General (Qld) v Francis [2012] QSC 275
Attorney-General v Lawrence [2010] 1 Qd R 505, cited
Attorney-General for the State of Queensland v Sampton, unreported, Applegarth J, 17 October 2016
Attorney-General (Qld) v Sands [2016] QSC 225, cited
Attorney-General (Qld) v Yeo [2008] QCA 115, cited
Fardon v Attorney-General (Qld) (2004) 223 CLR 575, cited
Kynuna v Attorney-General (Qld) [2016] QCA 172, followed
LAB v Attorney-General [2011] QCA 230, cited
Turnbull v Attorney-General (Qld) [2015] QCA 54, followed

COUNSEL:

BH Mumford for the applicant

JB Horne for the respondent

SOLICITORS:

GR Cooper, Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

  1. The respondent is a prisoner the subject of a supervision order made under Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) by Applegarth J on 17 October 2016[1] (the supervision order). The Attorney-General sought orders under s 22 of the Act alleging breaches of the supervision order.

    [1]Attorney-General for the State of Queensland v Sampton, unreported, Applegarth J, 17 October 2016.

  2. The respondent admitted the breaches alleged but submitted that he ought to…

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AGLC
Attorney-General for the State of Queensland v Sampton [2020] QSC 40
Case
[2020] QSC 40
Decision Date

CaseChat Overview and Summary

The case of Attorney-General for the State of Queensland v Sampton involved a lengthy criminal history of the respondent, including convictions for rape and other violent offences. The respondent was subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003. The central issue for the court was whether, despite the respondent's contravention of the supervision order, the adequate protection of the community could be ensured by the existing supervision order. The court was required to determine whether there was an unacceptable risk that the respondent would commit a serious sexual offence.

The court considered the evidence of two psychiatrists, Dr Sundin and Dr Timmins, who both diagnosed the respondent with various personality disorders and substance use disorders. Both doctors identified alcohol abuse as a significant risk factor for future sexual recidivism, with cannabis use being a lesser but not insignificant contributor. The doctors opined that the supervision order was serving its purpose in moderating the risk for future sexual recidivism posed by the respondent. They also emphasised the importance of the respondent remaining abstinent from substances, particularly alcohol, and residing within a stable home.

The court concluded that the risk of the respondent committing a serious sexual offence was reduced to an acceptable level by the existing supervision order. The court considered that the supervision order was serving its purpose in protecting the community. Therefore, the court made an order releasing the respondent from custody and continuing to subject him to the requirements of the supervision order. This decision was based on the expert psychiatric evidence that the supervision order was effective in moderating the risk of future sexual recidivism posed by the respondent, provided he remained compliant with the order and abstinent from substances.

Orders

Orders of the court

The respondent be released from custody and continue to be subject to the requirements of the supervision order of Applegarth J dated 17 October 2016.

Background

Background to the litigation

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][18]Attorney-General (Qld) v Francis [2012] QSC 275 at [64]-[67].Background The respondent was born in 1964. He is an Indigenous man who is now 55 years of age. The respondent has a lengthy criminal history commencing in 1983. He has been convicted of a variety of offences involving drugs, violence and dishonesty. In July 1992, as a 28 year old, the respondent was sentenced in the District Court at Cairns to four years’ imprisonment for the rape of a young woman who was unknown to him. He came across her on a walking track, overpowered and raped her. In November 2007, the respondent beat a woman with a paling and then raped her. At the time of that offending, he was under the influence of alcohol and cannabis. In May 2010, he was sentenced in the District Court at Cairns to nine years’ imprisonment with a serious violent offence declaration. The 2010 conviction was the basis of the application made for orders under the Act. That culminated in Applegarth J making the supervision order. Relevantly here, are requirements 7, 8 and 23 of the supervision order. They are in these terms:“The respondent must:(1)…(7)comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order;(8)comply with every reasonable direction of a Corrective Services officer which is intended to reduce the risk of interpersonal violence, aggression or intimidation of any person in which the respondent is in a personal or intimate relationship;…(23)abstain from the consumption of alcohol and illicit drugs for the duration of this order.” In July 2018, after the respondent had been in the community on the supervision order for about 20 months, it was alleged that he contravened each of conditions 7, 8 and 23. He was returned to custody.[19][19]Dangerous Prisoners (Sexual Offenders) Act 2003, ss 20, 21. An application under s 22 of the Act was heard by Mullins J (as her Honour then was) on 27 November 2018. Her Honour found that the respondent had breached condition 23, evidenced by drug tests which were positive for cannabis and methylamphetamine. Her Honour found requirements 7 and 8 of the supervision order had also been contravened, as the respondent had entertained a woman at his residence on numerous occasions without prior written permission of a corrective services officer. Her Honour noted that there was no suggestion of further sexual offending. Her Honour considered the evidence of two psychiatrists, Dr Sundin and Dr Timmins, and then concluded that the respondent ought to be released back into the community on the supervision order. Her Honour made orders accordingly. After being released from custody, the respondent lived at The Precinct in Townsville. On numerous occasions between 30 November 2018 and 17 September 2019, the respondent tested positive to cannabis. The ingestion of cannabis constituted a breach of condition 23 of the supervision order. The respondent admits this and some of those instances have been the subject of charges of breaching the supervision order.[20] On 29 November 2019, the respondent pleaded guilty in the Townsville Magistrates Court to those charge and was sentenced to one month imprisonment with parole release on 6 December 2019.[20]Pursuant to Dangerous Prisoners (Sexual Offenders) Act 2003, s 43AA.

Evidence

Evidence Before The Court

A warrant alleging the breaches was issued against the respondent[21] and he has been in custody since late September 2019.[21]Pursuant to Dangerous Prisoners (Sexual Offenders) Act 2003, s 20.Current psychiatric evidence Doctors Sundin and Timmins again examined the respondent. Both doctors made diagnoses. Doctor Sundin opines that:“Using the classificatory system of the American Psychiatric Association, DSM-V, I remain of the opinion that Mr Sampton’s primary diagnoses are:1.Antisocial personality disorder with elevated psychopathy traits;2.Substance use disorder - cannabis; and3.Alcohol use disorder, in sustained remission.” Dr Timmins opines that:“Mr Sampton has evidence of a Mixed Personality Disorder with Antisocial and Narcissistic personality traits. He has a PCL-R scoring of 30 which indicates the presence of psychopathic traits. He also has a Substance Use Disorder - mainly Alcohol and Cannabis (in sustained remission in a controlled environment). He has a history of extensive alcohol use and his cannabis use is likely more than he is admitting to. He has admitted to harmful use of other substances including amphetamines, opioids and inhalants at intermittent times.I am of the opinion that he does not meet the criteria for a sexual paraphilia.He does not currently have an Axis 1 psychotic illness or a major mood disorder.” As to risk, both doctors identified alcohol abuse as a significant risk factor. Doctor Sundin did not regard cannabis use as a risk which was as serious as alcohol abuse. Doctor Sundin observed:“With respect to the issue of risk of sexual recidivism, I am of the opinion that without the benefit of a supervision order, Mr Sampton’s risk of future sexual recidivism is moderate to high. His risk would escalate incrementally if he reverted to abuse of alcohol. His risk would principally be to an intimate partner, but stranger females would be at risk, although at fess risk than an intimate partner.The question of the contribution of cannabis to his risk for future sexual violent recidivism is less clear.”and later:“In my opinion, Mr Sampton’s risk for future sexual recidivism is principally related to his abuse of alcohol, with cannabis a lesser but not insignificant contributor.”and later:“Taking all of these factors globally, I consider that the supervision order is serving its purpose in moderating the risk for future sexual recidivism posed by Mr Sampton.It remains of prime importance for him to remain abstinent from alcohol and for any intimate partner relationship to be closely monitored.I would prefer him to abstain from cannabis but, as indicated above, I consider that cannabis is a less serious risk factor for future sexual offending when compared to alcohol, which has been the principal disinhibitor.”and later:“I therefore respectfully advise that in my opinion, the existing supervision order is serving its purpose in protecting the community and Mr Sampton could be released back into the community under the auspices of the existing supervision order.”and later:“Central to any discharge plan there would need to be an understanding there is no flexibility in the Department’s approach to any use of substances. Hopefully with that in mind, then together with ongoing treatment and support, this will have the desired effect of having him maintain his abstinence.In the future and to minimise risks, providing Mr Sampton does remain:•compliant with his Supervision Order and Reasonable Directions;•remains under effective Case Management;•stays connected with a suitably qualified mental health professional;•remains completely abstinent from substances including alcohol;•resides within a stable home;then his risks of reoffending/breaching are likely to be manageable and within a Moderate range of risk.If this plan were to be departed from then his risk of re-offending or at least breaching his Order would escalate significantly with further breaches likely.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Doctor Timmins’ views generally accord with those of Dr Sundin although Dr Timmins thought that the ingestion of cannabis and the abuse of alcohol were both significant risk factors.Consideration The central consideration under the Act is the protection of the community from an unacceptable risk of the commission of serious sexual offences. While the respondent has shown an unfortunate tendency to breach the supervision order by ingestion of cannabis, he has not, during his time in the community subject to supervision, committed any sexual offence. Both alcohol and cannabis have a disinhibiting effect. It is the common human experience that the ingestion of substances with a disinhibiting effect by someone prone to abhorrent behaviour increases the likelihood of that person reverting to the abhorrent behaviour. Both doctors opine that the risk of the respondent committing a serious sexual offence is reduced by him being subject to a supervision order. In my view, that risk is reduced to an acceptable level and for that reason I made the order releasing him back into the community on supervision.