Attorney-General for the State of Queensland v. Shapland

[2007] QSC 344

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland  v Shapland [2007] QSC 344

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(Applicant)
v
CLAUDE EDWARD SHAPLAND
(Respondent)

FILE NO/S:

S3237 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

5 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2007

JUDGE:

Byrne J

ORDER:

It is ordered that:

1. pursuant to section 13(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003, I am satisfied that the respondent, Claude Edward Shapland, is a serious danger to the community in the absence of a Division 3 order.
2. pursuant to section 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 the respondent Claude Edward Shapland, be detained in custody for an indefinite term for control, care or treatment.
3. pursuant to section 14(1)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 the respondent, Claude Edward Shapland, be detained in custody until the continuing detention order is rescinded by the order of this Honourable Court.

CATCHWORDS:

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — JUDGEMENT AND PUNISHMENT — OTHER MATTERS — where the respondent served a term of imprisonment for the indecent treatment of a child under the age of 12 and other sexual offences — where the applicant sought a continuing detention order under s 13(5)(a) of the Dangerous Prisoners' (Sexual Offenders) Act 2003 — whether there is an unacceptable risk that the respondent will commit a serious sexual offence if released or if released without a supervision order — whether continuing detention order appropriate

Dangerous Prisoners (Sexual Offenders) Act 2003, s 13; s 13(3); s 13(4); s 13(5)(a)

Attorney-General for the State of Queensland v Beattie [2007] QCA 96

COUNSEL:

B W Farr for the Applicant.
D C Shepherd for the Respondent.

SOLICITORS:

Crown Law for the Applicant.
Legal Aid Queensland for the Respondent.

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

BYRNE J

No 3237 of 2007

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND	Applicant
and
CLAUDE EDWARD SHAPLAND	Respondent

BRISBANE

..DATE 05/11/2007

ORDER

HIS HONOUR:  The Honourable the Attorney-General applies for

an order pursuant to section 13(5)(a) that the respondent be

detained in custody for an indefinite term for controlled care

or treatment or else that, if he is to be released from

custody, the release be subject to conditions to be contained

in a supervision order.

It is common ground, and I am satisfied by the evidence to the

requisite standard, (see section 13(3) of the Dangerous

Prisoners (Sexual Offenders) Act 2003) that, in the absence of

an order under Division 3 of that Act, the respondent is a

"serious danger to the community" within the meaning of that

expression in section 13 of that Act.

The respondent is aged 69.  In March 2004, he was sentenced to

four years' imprisonment on his pleas of guilty to three

charges of indecent treatment of a child under the age of 12.

The offences were committed whilst on parole for 10 other

sexual offences committed against an 11 year old girl in 1994

and 1995.  In the Lismore District Court in September 1995, he

was sentenced to eight years' imprisonment in respect of these

offences.  He was released on parole in 2002 with the

condition that he have no contact, directly or indirectly,

with children.  The offences of which he was convicted

in March 2004 involved a breach of the conditions of that

parole order.  His parole was subsequently revoked.

The Queensland offences involved digital examination of the

genitalia of at least one child.  The respondent had been

invited into the house where the offence occurred, apparently

to negotiate the sale of a motorcycle.  The parents of the

victims, girls aged 10 and 7, were in the house at the

time.  While the parents were distracted, the respondent

entered the bedroom with the children.  He was discovered

shortly afterwards by the girls' mother inspecting the anal

and genital areas of the older girl.  She was on all fours

exposing herself.  The younger child was found under the

blankets of the bed wearing no pants.

By the time these offences took place, the respondent had

participated in a community-based sex offenders treatment

course whilst on parole. 

His earlier offending concerned an 11 year old girl the respondent met when her parents delivered furniture to the house where he was living.  While the parents were distracted, he put his hand on the outside of her underpants and rubbed her genital area.  A few days later, he waited in his car for the child outside her school.  He gave her a drink and a packet of chips and drove her to a bushland park.  There the first episode of sexual misconduct occurred.  About a week later, he waited outside her school.  Again she went with him to the same location.  This time he gave her $3.  Again sexual misconduct occurred.  That kind of behaviour continued up to three times a week between July 1994 and February 1995.  The sexual activity involved incidents of anal and vaginal intercourse.

Three psychiatrists have expressed opinions concerning the

risk that the respondent might commit sexual offences against

children were he to be released into the community.

Professor Nurcombe interviewed the respondent in June 2006.

He had available to him earlier psychological and psychiatric

reports.  He concludes that the respondent is at high, or

moderate to high, risk of sexual re-offending.  Matters of particular concern are the respondent's lack of any friendship network in the community, the difficulty he will have in forming an intimate personal relationship, his obdurate denial of involvement in the offences committed in Queensland, a general sense of social rejection, loneliness, childhood emotional deprivation and subtle attitudes that favour child molestation:  for example, he thinks that children are capable of enjoying sex with adults physically, if not mentally, by between 11 and 15 years of age.  If the respondent were to re-offend, the likely victims would be emotionally needy female children aged between 10 and 14 years.

Professor Nurcombe considers that, although the respondent is

in his late sixties and his libido is waning, re-offending is

possible into his seventies, and that close supervision would

be required after any release from prison.  In Professor

Nurcombe's view the respondent should not live or work in the

vicinity of children. 

Professor Nurcombe considers that it is very important that

the respondent develop a realistic post-release plan.

A sexual offenders treatment program would have involved the

completion of such a relapse prevention plan.  But the

respondent has in recent years refused to participate in such

a program while in custody. 

In his report, the psychiatrist, Dr Beech, mentions that one of the justifications the respondent advances for having refused to undertake a sexual offenders treatment program in prison is that he finished such a course at Maroochydore whilst on parole in respect of the New South Wales offences.  The respondent, also Dr Beech sensed, felt that he had learned a few things - "mainly common sense" - and could not remember much about the strategies by the time Dr Beech spoke to him in late June.

Like Professor Nurcombe, Dr Beech is concerned about the

absence of well-considered plans for release.  When asked

specifically what he would do to prevent further imprisonment,

the respondent replied that he would keep away from children:

"just refrain".

Dr Beech's report discusses a long-standing history of

criminal behaviour that dates back to the respondent's teenage

years.  It has included property offences, assault, drug

related offences. 

Dr Beech considers that the respondent is at high risk of re-offending by sexually abusing children if released into the community.  He points out that the Queensland offences occurred whilst on parole in respect of the New South Wales offences.  Within 13 months of release, and following participation in the community in a sexual offender program, the offences occurred (as Dr Beech describes the situation) in the context of the respondent's isolation and lack of support.  In Dr Beech's view, little has changed in those respects.  He also considers that the lack of a realistically thought through release plan is "most worrying", reflecting a denial by the respondent of having committed the Queensland offences, minimisation of his sexual misconduct with children, and lack of insight.  Dr Beech thinks that the basic intimacy problems that the respondent has in relation with adults have not been addressed and that the respondent has no cogent strategies for avoiding re-offending with children, other than refraining from contact with them.  His plans on release are "desultory", in Dr Beech's opinion.

Dr Beech therefore considers that it is likely that, on any

release, the respondent would find himself in similar

circumstances to those that prevailed when he offended against

the children and would be likely to seek out young girls again

to gratify a need for affection and intimacy.

Dr Beech considers that the risk of re-offending, which would

be expected to involve trying to befriend and entice a young

girl he has met through some contact with her parents, could

be reduced to moderately high by the development of a more realistic plan for the respondent's release.  The plan would need to address loneliness, idleness and isolation and assist the respondent to be aware of those risk factors for offending so that he could make preparations.  Dr Beech considers that the respondent should have no direct contact with children, should not reside near them, and should not go to places that children may frequent.

In the community, the respondent would also require regular supervision, as well as ongoing counselling in a sexual offender maintenance program.  He also considers that, although alcohol and drugs did not appear to play a role in the sexual offending with children, the respondent has a history of substance related offences, and alcohol and drugs may act to inhibit him:  he should refrain from their consumption.

In testifying, Dr Beech expressed the opinion that the

respondent did not require a high intensity sexual offender

treatment program.  Indeed, he was poorly motivated to attend

such a program, denying the commission of the Queensland

offences.  But Dr Beech did consider that it was necessary for

the respondent to participate in a program that provides for

his release:  in particular, one which would cause him to

develop considered plans for the way he would live his life

were he to be released now, dealing with such things as where

he would live and, realistically, what he would do to address

loneliness, idleness and isolation.

Another psychiatrist, Dr James, assessed the risk of

re-offending sexually with children at moderately high.

Were the respondent to re-offend, Dr James expects the

offences would be similar to those so far committed with some

brief period of cultivating the victim before the offence

occurred. 

Dr James also considers that the respondent ought to participate in a collaborative program directed towards facilitating his rehabilitation, speaking of the kind

of transition program to which most prisoners about to be

released are, if they wish, exposed.  A good rehabilitation

plan, if implemented and supported actively, could reduce the

risk of relevant re-offending by about 20 per cent, Dr James

thinks.

At the conclusion of the testimony of the psychiatrists, the

respondent communicated, through his counsel, a willingness to

participate in a rehabilitation plan.  Although the respondent

had previously refused to participate in such a plan, he

would, it was said, join in one and make a genuine effort to

participate effectively in it. 

Such a transition program was to commence on 3 September and

to occupy about a month.  These proceedings were adjourned to

facilitate his participation in the program.

The respondent has participated in such a program.  But he has

not taken any useful advantage of it, even though he will have appreciated the objects of the program and his need to develop a detailed, realistic plan for his release which addresses the concerns raised by the psychiatrists.  None of that has happened.

A report from the Director of the Sex Offender and Dangerous

Offender Unit, Department of Corrective Services dated

2 November 2007 describes what has happened. 

The transition program offered to offenders pending release to facilitate re-integration into the community involves a number of modules.  The respondent elected not to attend the housing module.  That is by the way.  Of more significance is the nature and extent of his participation in the program otherwise.

At the conclusion of the program, the respondent submitted a

plan which scarcely addresses the many concerns raised by the

psychiatrists.  This is consistent with the absence of genuine

participation in the program.

The report indicates that the respondent was "generally a

disruptive presence" in the program.  It describes him as "a

reluctant participant", who often commented that he did not

need support on any release because this had already been

arranged for him.  On one occasion, other group members

suggested that the respondent leave the group if he did

not wish to participate.  His response was that the facilitators would not allow him to leave.  Although he was not rude or offensive in dealing with facilitators, he did display an aggressive manner at times.
The transitions program facilitator met with the respondent personally on 24 October.  The respondent said that he had contacted the Catholic prison ministry regarding support but did not find that service helpful and would not access it again.  He did not plan to use other community support agencies upon release and said that he would not register with Career Employment Australia as he would be able to find casual work easily. 

A few days ago, a teleconference was held between the

respondent and the re-integration support officer to obtain an

update concerning his accommodation and release plans.  It

seems that he indicated that he had registered with the

Department of Housing but expected Queensland Corrective

Services to provide him with suitable accommodation.  That

expectation is justified.  Emergency accommodation can be

provided for a short while until more appropriate

accommodation is obtained were he to be released.

The absence of an effective plan on release shows that the

risks identified by the psychiatrists have not been reduced by

a comprehensive plan to which the respondent was committed. 

Confronted with the opportunity to participate genuinely in a program to facilitate his re-integration into the community -one which might have appreciably reduced the risk of recidivism - the respondent has not taken advantage of the opportunity.

It is said on his behalf that the conditions which would be

imposed on his release afford adequate protection to the

community.  In many respects, they are detailed.  And if there

were any substantial chance of compliance with those

particularly directed to reducing the risk of recidivism, there might be a justification for release.  For non-compliance with the conditions would result in the respondent's early return to prison.  But there are clear

indications in the respondent's conduct over several years now

that it is highly unlikely that the respondent would comply with conditions of a supervision order, except to the extent to which, as it seemed to him from time to time, that they suited him. 

So the risk of recidivism remains high.  I accept the views

expressed by the psychiatrists and, in particular, the

identification of the nature and extent of the risks by

Dr Beech.

The respondent's unwillingness to accept and commit himself to

comply with the strictures of a supervisory regime persuade me

that the adequate protection of the community requires his

continuing detention for control (cf Attorney-General for the

State of Queensland v. Beattie [2007] QCA 96, at paragraphs 31

and 32).

I should also record that the matters which, pursuant to section 13(4) of the Act the Court must consider in deciding whether a prisoner is a serious danger to the community beyond the information contained in the reports of the psychiatrists supported under section 11 of the Act, have been taken into account.

The Court therefore orders that:

(1) pursuant to section 13(1) of the Dangerous Prisoners

(Sexual Offenders) Act 2003, I am satisfied that the

respondent, Claude Edward Shapland, is a serious

danger to the community in the absence of a Division

3 order;.

(2) pursuant to section 13(5)(a) of the Dangerous

Prisoners (Sexual Offenders) Act 2003 the

respondent, Claude Edward Shapland, be detained in

custody for an indefinite term for control, care or

treatment;.

(3) pursuant to section 14(1)(b) of The Dangerous

Prisoners (Sexual Offenders) Act 2003 the

respondent, Claude Edward Shapland, be detained in

custody until the continuing detention order is

rescinded by the order of this Honourable Court.

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