Attorney-General for the State of Queensland v SDWH

[2020] QSC 349

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v SDWH [2020] QSC 349

PARTIES:

ATTORNEY-GENERAL OF THE STATE OF QUEENSLAND

(applicant)

v
SDWH

(respondent)

FILE NO/S:

BS 7105 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application filed 30 June 2020

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Ex tempore on 2 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2020

JUDGE:

Jackson J

ORDER:

The Court, being satisfied that the respondent is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003, orders that the respondent be released from custody and from that time be subject to the requirements of the supervision order initialled on 2 November 2020 for a period of 10 years until 2 November 2030.

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 applies for an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where the applicant submits, and the respondent agrees, that the adequate protection of the community can be ensured by the respondent’s release on a supervision order for a period of 10 years – where the evidence is that the respondent would be at high risk of reoffending if released into the community without a supervision order – whether the adequate protection of the community can be ensured by the release of the respondent on a supervision order

Child Protection (Offender Reporting) Act 2004 (Qld), s 50, s 51
Criminal Code (Cth), s 474.19
Criminal Code (Qld), s 210, s 215, s 218, s 218A, s 218B, s 228A, s 228B, s 228C, s 228D
Dangerous Prisoners (Sexual Offenders) Act 2003, Part 2 Division 3

Drugs Misuse Act 1986 (Qld), s 6

COUNSEL:

B Mumford for the applicant
S Lewis for the respondent

SOLICITORS:

G R Cooper Crown Solicitor for the applicant
Legal Aid Queensland for the respondent

HIS HONOUR: This is an application made under Part 2, Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003, which I will call “the Act”, for a supervision order.

The respondent is 25 years of age.  He has been in prison since 2 October 2016. 

The index offences were 24 offences of indecent treatment of a child under 16 under section 210 of the Criminal Code, five offences of using a carriage service to solicit child pornography material under section 474.19 of the Criminal Code of the Commonwealth, four offences of grooming a child under 16 with intent to expose to indecent matter under section 218B of the Criminal Code, four offences of distributing child exploitation material under section 228C of the Criminal Code, an offence of involving a child in making child exploitation material under section 228A of the Criminal Code, an offence of grooming a child under 16 years with intent to procure engagement in a sexual act under section 228B of the Criminal Code, and an offence of possessing child exploitation material under section 228D of the Criminal Code.

The offences occurred between 27 April 2016 and 1 September 2016.  Of that period, before 17 June 2016, the respondent was on bail for offences committed in 2014.  From 27 June 2016, the respondent was in the community on suspended imprisonment for the 2014 offences. 

On 5 November 2018, the respondent was sentenced to 18 months imprisonment on the indecent treatment offences and the offence of involving a child in making child exploitation material, and lesser concurrent terms of imprisonment for the other offences, with all terms to be served cumulatively upon the term of imprisonment imposed for the 2014 offences. 

All of the index offences were committed electronically or by telephone.  They involved six complainants aged between 12 and 14 years.  Throughout the period, the Respondent resided at Gympie or the Sunshine Coast.

The first complainant was 14 years old and resided in Albany, Western Australia.  She befriended the respondent through Facebook between 27 April 2016 and 24 August 2016.  They communicated through Facebook Messenger, texting, talking on the phone, and sending images via Snapchat, until the complainant blocked contact from the respondent.  He sent her indecent messages and images of his exposed penis.  She responded with photographs of her bottom wearing a black G-string and showing the lips of her vagina as well as topless photos showing her breasts and further photos of her vagina.  She sent another image of her wearing blue jean pants.  Their communications dried up from 18 May 2016, when they argued over whether she still wanted him to talk to her.  There were only two irrelevant texts after that date.

The second complainant was 13 years old and resided in Maryborough.  Between 14 May 2016 and 31 August 2016, she and the respondent communicated by text messaging of an indecent nature.  He sent her images and videos of him masturbating.  She sent images of her cleavage in a bra and her stomach.  She sent further images taken from behind showing her bottom and back, and one where she was naked, showing her left nipple, as well as images in her underwear.  He sent her an image of his erect penis and indecent text messages.  These exchanges continued until 16 June 2016, when the complainant told the respondent she wanted him out of her life and would be blocking his number.  After further attempts by the respondent to make contact on 31 August 2016, he attempted to call the complainant, but did not make contact.

The third complainant was 13 years old and resided at Maryborough.  She was the friend of another complainant.  In the days before 22 May 2016, the respondent sent her naked images of the other complainant and himself.

The fourth complainant was 12 years old and resided at Ipswich.  She communicated with the respondent about general matters via Facebook Messenger.  After two weeks, the respondent started sending naked pictures with a penis exposed to her.  Between 18 May 2016 and 3 August 2016, the respondent engaged in extensive text messaging which was indecent.  On 7 June 2016, she sent three images of herself in her underwear and bra, to which he responded with further indecent messages.  The respondent sent her an image in shorts, pinching his underwear.  She sent him further images of herself in her underwear, including some showing her hand between her thighs.  Communication from her ceased on about 14 June 2016, and subsequent messages from him went unanswered.

The fifth complainant was 14 years of age and resided at Beerwah.  She and the respondent befriended via Facebook.  He sent her a picture of his penis and she sent him a picture of her naked.  Numerous images were exchanged, and he sent her videos of him masturbating and ejaculating.  Between 7 July 2016 and 31 August 2016, there were numerous phone calls and text messages that were indecent.  He requested her to make images, which she did.  On 25 August 2016, the complainant requested the respondent to delete communications, videos and images with her, and thereafter communication between them ceased.

The sixth complainant was 14 years old and resided at Ipswich.  She met the respondent through friends from Gympie.  Between 31 July 2016 and 31 August 2016, there were extensive text messages between them as well as telephone calls.  The complainant sent him images of her breasts both in and out of a bra, and probably sent other images of herself.  On 29 August 2016, at his request, she sent him images of her naked genitalia, one covered partly by her hand and the other with her fingers spreading her labia.  On 30 August 2016, she sent another similar image.  Contact ceased on 31 August 2016.

In all, the defendant possessed 191 child exploitation images on his phone, of which 176 were in category 1 of no sexual activity, seven were in category 2, and eight were in category 4.  Eighty-one were copies of other images.

The respondent has convictions for other sexual offences. On 27 June 2016, he was convicted of 11 offences of indecent treatment of a child under 16 involving images under section 210 of the Criminal Code; 11 other offences of indecent treatment of a child under 16, also under section 210; seven offences of using the internet to procure a child under 16, under section 218A; an offence of carnal knowledge of a child under 16 under section 215; an offence of procuring a sexual act via threat or intimidation under section 218(1)); an offence of grooming a child under 16 with intent to expose to indecent matter, under section 218B; and an offence of possessing child exploitation material under section 228D.

The offences were committed between 1 January 2014 and 6 August 2014.  There were 12 complainants aged between 12 and 15 years.  The first complainant was aged 14 and 15 at the time of the offences.  She and the respondent became friends via Facebook.  He sent her a naked image of himself.  In effect, she did not respond.

The second complainant was aged 14 and befriended the respondent on Facebook.  He requested her to send nude images.  She never did, and there was no other significant contact between them.

The third and fourth complainants were aged 15 and 14, respectively.  They met the respondent at a bus terminal.  They gave him their telephone numbers.  The respondent text messaged both of them.  He asked one for an image of her breasts, but she refused.  He sent her an image of himself, naked.  He sent another image of his penis and a further naked image of himself.  There was no significant contact after 26 April 2014.

The fifth complainant was aged 15.  In late May 2014, or early June 2014, she befriended the respondent on Facebook.  He sent her three or four naked images of himself, including one showing semen coming out of his penis.  He requested her to send him a “body sign” image.  On an occasion in June 2014, she met the respondent at a NightOwl, where he kissed her, tried to undo the button on her pants and slide his hands into her underwear.  She pushed him off and left.  Contact from her ceased at about that time, although he continued to send text messages of no particular significance.

The sixth complainant was aged 12 and 13 at the time of the offences.  She met the respondent at the Caloundra Library.  On a later occasion, at the library, he came up to her, asked her for a kiss, and put his hands down her pants, rubbed her vagina, and inserted his fingers into her vagina.  They went to a disabled toilet, where he removed her top and kissed one of her breasts.  He put his fingers into her vagina again, showed her his penis and put her hand on it and made her rub.  On another occasion, they met again at the library.  He started to rub her vagina and put her hand on his penis.  As she left, he grabbed her and kissed her.

The seventh complainant was aged 14 and 15 at the time of the offences.  She too met the respondent at the Caloundra Library.  After about two weeks, at the respondent’s request, she sent him a number of images in her underwear and also naked.  The respondent also sent her naked images of himself, as well as a video of him playing with his penis.  He asked her to have sex, but she declined.  On 27 July 2014, contact ceased.

The eighth complainant was 15.  She too met the respondent at the Caloundra Library.  The respondent sent her two images of himself naked.  She told him to leave her alone and blocked him thereafter.

The ninth complainant was 13.  She met the respondent at a café in Mooloolah.  She started communicating with him via Facebook.  After about a week, he sent her two images of himself naked.  He asked her for a photo and she sent him one with her friends in swimsuits.  He asked her to take the swimsuit off and send a naked image, and she said no.  About a month later, the respondent sent her a video of him playing with his penis.  She then blocked him from contacting her.

The tenth complainant was 14.  She met the respondent at a party in early 2014.  They dated for about a week.  On 5 July 2014, they met, and he requested her to have sex.  She initially refused.  He started kissing her and started touching her on her breasts and put his hand in her underwear so his fingers were inside her vagina.  Later, he put her hand on his penis.  He requested they have sex again and she agreed.  A couple of weeks later, he threatened to assault her ex-boyfriend if she did not do what he asked her to do.  On 8 July 2014, he asked her to send him nude images, but she did not respond, and contact ceased after that date.

The eleventh and twelfth complainants were 15.  They met the respondent at a party in July 2014.  A day later they met and the respondent showed them an image of himself naked on his mobile phone.  Between 25 July 2014 and 27 July 2014, he sent one of them a number of text messages, asking her to send him nude images, but she refused.  He requested a threesome with the two of them.  He asked again for a naked image.  He promised that if one of the complainants kissed him or had sex with him, he would give her drugs.  Communications then stopped.

The respondent had 122 child exploitation images on his mobile phone.  Of those images, 118 were category 1 and four were category 2.

Apart from his sexual offending, the respondent has a criminal history of drug offences, including five offences of supply of cannabis to a minor, under section 6 of the Drugs Misuse Act, and an offence of supply of another dangerous drug to a minor under that section;  nine offences of failing to comply with reporting obligations under section 50 of the Child Protection (Offender Reporting) Act, after his conviction on 27 June 2016;  and one offence of giving false or misleading information under section 51 of the Child Protection (Offender Reporting) Act;  as well as offences of trespass under the Summary Offences Act;  and possession of a knife in a public place under the Weapons Act.

The applicant relied on a number of reports prepared by psychiatrists, including two risk assessment reports obtained under section 11 of the Act. 

There were three reports by Dr Michael Beech dated 27 June 2018, 27 May 2020, and 20 October 2020.  The first report was prepared for the purposes of assessment in relation to whether this application should be brought.  The second was prepared as an addendum to the first report.  The third was prepared as a further update in light of the respondent’s completion of a High-Intensity Sexual Offender Program (‘HISOP’) in 2019 and 2020.

At the time of the first report, the respondent had completed the Getting Started Preparatory Program for Sexual Offending and had attempted but not completed the HISOP during 2017 and 2018.  The respondent was engaged in the 2017/2018 HISOP for 215 hours, completing four of seven modules.  A decision was made to exclude him from the program on 14 March 2018 because of a number of factors relating to his engagement in the program.  As well, program staff were notified that the respondent had been charged with a further 58 offences, that were those not dealt with until 5 November 2018.  The reason for his exclusion was that in the view of the program staff, he lacked readiness, willingness or ability to participate in treatment, notwithstanding formal warnings.  Some of his behaviours reflected his limited social skills, impulsivity, poor problem solving, and difficulty regulating his emotions.  He struggled to provide thoughtful and considered responses, and there was a generalised resistance to explore his offending behaviours.

This occurred in the context of other behavioural breaches in prison.  They included being found with books containing pictures of prepubescent females, images with reference to Google searches of names, ages and postcodes, a quantity of alcohol in his cell, material giving information upon how to access child exploitation material and to avoid police detection, newspaper clippings depicting images of children, and a Bible with names and websites written inside it.

Between 15 January 2019 and 29 April 2020, the respondent participated in a further or second HISOP.  He completed 117 sessions over 346.5 hours.  The completion report opines that he has outstanding treatment needs in relation to the areas of sexual deviant interest, impulsivity and poor problem solving, and recommends professional support to meet his unmet treatment needs a well as to consolidate and build upon his identified risk management strategy, and also recommends he participate in the Staying On Track Sexual Offending Maintenance Program to ensure ongoing development of skills obtained in the HISOP.

In his first report, Dr Beech opined that the respondent is a sexually preoccupied young man who preyed on female minors to meet his sexual needs.  There was a voyeuristic component to his offending and elements of exhibitionism.  He is a manipulative person who attempted to groom victims and, on occasions, sought to threaten or intimidate them.  In Dr Beech’s opinion, he has significant antisocial and psychopathic traits, despite relative youth and limited criminal history, and has a substance misuse disorder.  Other than his narcissistic and antisocial personality traits, Dr Beech did not think that there was any formal psychiatric condition from which the respondent suffered, although he has developed significant dependency needs and affective instability.  Dr Beech suspected there is an attraction to young female teenagers, but that may be because he is able to manipulate them and intimidate them, rather than because he has a specific sexual attraction towards them.

Dr Beech assessed the respondent on a number of instruments.  On the Static-99R, he gave the respondent a score of 6 that places him in the group of offenders who are seen to be at much above average risk of offending.  On the Psychopathy Checklist-Revised, he gave the respondent a score of 26 and opined the respondent has at least moderate to high psychopathic traits.  I note that a score of 26 is below that required for a diagnosis of psychopathy.  On the Risk for Sexual Violence Protocol, Dr Beech noted the chronicity and persistence of offending, the use of physical coercion, the use of psychological coercion, extreme minimisation, attitudes that condone sexual violence, problems with self-awareness, psychopathic personality traits, mental illness in the form of antisocial and narcissistic personality traits, problems with substance abuse, violent ideation through the use of violent threats, problems with relationships, problems with non-intimate relationships at work and in groups, problems with employment, non-sexual criminality, problems with treatment and problems with supervision as indicating a high load of dynamic risk factors. 

In Dr Beech’s opinion, there was a high risk of further offending.  He opined that on release from prison, the respondent would remain sexually preoccupied and would seek out further victims on the internet and that he would arrange to meet them or meet with others in public.  He considered the respondent to be essentially untreated sexually preoccupied and significantly psychopathic in nature.

In his second report, Dr Beech did not substantially add to or alter those views.  In his third report, Dr Beech acknowledged that the respondent had been able to complete an intensive program, being the second HISOP, and gained some insights from it.  Although the facilitators expressed concerns about ongoing treatment needs, in Dr Beech’s view, they could be met with community treatment programs and supervision. 

In conclusion, Dr Beech opined that the respondent’s risk of reoffending without a supervision order is high.  With a supervision order, he considers the risk would be reduced below moderate, but the respondent would need ongoing supervision and monitoring, general psychological counselling, specific counselling related to deviant sexual processes, and monitoring to ensure abstinence.  Dr Beech believes that he would need to have access to potential victims restricted and that would necessitate embargoes on the use of social media.

Dr Eve Timmins prepared a risk assessment report dated 20 September 2020.  Her opinion is broadly consistent with Dr Beech’s first report, but to some extent more pessimistic than his later report.  She opines that the respondent has a difficult personality with antisocial and narcissistic personality traits.  He scored relatively high for psychopathic traits.  He had a history of substance abuse and had sold substances for financial gain and used substances in the commission of his sex offences.  She is of the opinion that the respondent probably has hebephilia.  He may also have exhibitionism and voyeurism, as identified by Dr Beech, and an interest in rough sex and BDSM practices.  In her opinion, the respondent would be a high risk of reoffending in a sexual manner if released into the community without a supervision order.  That risk becomes elevated if he uses substances that will disinhibit his behaviour or to entice or engage young females into sexual behaviours with him.  Given the respondent’s history, personality structure, behavioural  breaches whist in prison and on the HISOP course, Dr Timmins was not confident that the respondent will comply with the conditions of a supervision order, such that his risk to the community for sexual offending is reduced to any great extent under a supervision order.  In her view, he would be most likely to continue to fall into a moderately high risk of sexual reoffending.

Dr Karen Brown prepared a risk assessment report dated 19 October 2020.  Her report is also broadly consistent with Dr Beech’s reports.  In her opinion, the respondent has psychopathic traits and a mixed personality disorder.  He is currently treated for depression and anxiety symptoms.  He does not have a definite diagnosis for sexual deviance, but his sexual drive and preferences suggest a possible diagnosis of a paraphilic disorder and require further longitudinal assessment.  His use of illicit substances in the community and in prison make it likely he will return to substance use if not subject to supervision in the future.  In Dr Brown’s opinion, the respondent’s unmodified risk of sexual reoffending is high to extremely high.  The risk factors include his narcissistic psychopathic personality structure, his poor self-awareness, his disregard for the law in the past, the possible diagnosis of a paraphilic disorder, and his limited response to treatment.  He has limited social supports.  The sexual offending risk would be significantly increased if he had online or face-to-face access to underage or vulnerable females. 

In Dr Brown’s opinion, the respondent’s outstanding treatment needs would be best addressed in individualised sexual offender treatment delivered by an experienced forensic psychologist.  Therapeutic work should focus upon the use of prosocial strategies to improve self-esteem, substance misuse work and an ongoing exploration of management of his sexual drives and preferences.  He should be supported to gain self-awareness and insight into the core beliefs that drive his narcissistic defences and the develop a more internalised understanding of his offending and relapse prevention. 

In Dr Brown’s opinion, the respondent should also be referred to a forensic psychiatrist for assessment and management of his mental disorders.  He may struggle and become depressed when his ability to engage in narcissistic criminal activities is reduced.  In her opinion, a supervision order should include GPS monitoring, no unsupervised contact with children, monitoring of electronic devices and online activity, referral to a forensic psychiatrist, referral to a forensic psychologist, abstinence from alcohol and illicit drugs, monitoring of relationships and appropriate disclosure of offending history to potential partners, and development of a daily routine and support to find prosocial work.  Overall, in Dr Brown’s opinion, although there are outstanding treatment needs and significant psychopathic traits, with appropriate community supervision, the risk of sexual reoffending will be reduced to a moderate and manageable level.

In deciding whether the respondent is a serious danger to the community, in accordance with section 13(4) of the Act, I have had regard to those reports as well as two other reports by Peter Stoko, psychologist, that are in evidence.  I have paid attention to the information that indicates whether or not there is a propensity on the part of the respondent to commit serious sexual offences in the future and to his pattern of offending behaviour in the past, as set out in these reasons.  I have also paid attention to the respondent’s efforts to address the cause or causes of his offending behaviour, including his participation in three rehabilitation programs as previously mentioned.  I consider that his participation in those programs has had a limited but positive effect in accordance with the completion report from the second HISOP.  I have paid attention to his antecedents and criminal history, without setting out details of his personal background in these reasons.  I have also paid attention to the risk that the respondent will commit another sexual offence if released into the community and the need to protect members of the community from that risk as well as other matters in the material.

The applicant submits that there is sufficient evidence in considering the matters required to be taken into account to satisfy the Court to the high degree of probability necessary that if released without a Division 3 order, the respondent is an unacceptable risk of committing a serious sexual offence. The respondent accepts that the evidence supports a finding that he is a serious danger to the community in the absence of a Division 3 order. In my view, there is acceptable cogent evidence to satisfy to a high degree of probability the finding that there is an unacceptable risk that the respondent will commit a serious sexual offence, being a sexual offence against a child, if released from custody without a supervision order being made.

In the applicant’s written submissions dated 20 October 2020, it was submitted that the adequate protection of the community could not be reasonably and practicably managed by a supervision order, with the consequence that the respondent should be detained in custody under a continuing detention order.  However, in a supplementary written submission dated 27 October 2020, the applicant abandoned those paragraphs of the first submission and accepted that the risk posed by the respondent can be adequately managed under a supervision order.  In support of that submission, the applicant submits that the preponderance of expert opinion tends to the conclusion that a supervision order containing conditions on use of social media or devices capable of accessing the internet, contact with girls under 16, individual counselling, regular testing to ensure that he remains abstinent from drugs and alcohol, and individual psychological treatment is likely to adequately manage the risk posed by the respondent, namely, that he will reoffend by committing a sexual offence against a child.  The evidence supports the conclusion that a supervision order should be made for 10 years.

The respondent accepts and adopts the contents of the applicant’s supplementary submission. 

In my view, those submissions should be accepted.  The Court is satisfied that the adequate protection of the community can be reasonably and practicably managed by a supervision order, and the requirements under section 16 of the Act can be reasonably and practicably managed by Corrective Services officers.  It follows that a supervision order meets the paramount consideration of the need to ensure adequate protection of the community and that such an order should be made in this case on the terms of the draft, which I have initialled.