Attorney-General for the State of Queensland v. Smith

[2008] QSC 22

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Smith [2008] QSC 22

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

Applicant

and

MICHAEL BRADLEY SMITH

Respondent

FILE NO/S:

BS9445/07

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

21 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2008

JUDGE:

Byrne J

ORDER:

Supervised release in accordance with the initialled draft.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER MATTERS – where respondent finished sentence for sexual offences involving violence- where application made under s13 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) for a supervision order not opposed by respondent- whether respondent is a serious danger to the community in the absence of a division 3 order- whether conditions of the supervision order appropriate

COUNSEL:

J R Hunter for the applicant
T A Ryan for the respondent

SOLICITORS:

Crown Solicitor for the applicant
Legal Aid Queensland for the respondent

1. The Honourable the Attorney-General seeks, and the respondent does not oppose, a finding that, in the absence of an order under Division 3 of Part 1 of the Dangerous Prisoners (Sexual Offenders) Act2003, the respondent is a “serious danger to the community” within the meaning of that expression of s. 13(2) of that Act.

1. The evidence amply supports such a finding to the requisite degree: see s. 13(3).

1. The respondent was born in December, 1981. 

1. A variety of illicit drugs affected him from an early age.  He was a regular user of cannabis by age 13 at the latest.  When he was 14, he began consuming alcohol.  He turned to intravenous use of amphetamines at age 15.  Before he was 17, he had used heroin. 

1. Resort to more dangerous drugs over time mirrored an escalation in the gravity of his offending.

1. Delinquent behaviour began when he was aged 12 years.   By the time he left school (without completing Year 10), he had been in trouble for what he described to the psychiatrist, Dr Beech, as “minor stuff”: such as shoplifting and stealing.  He committed offences to buy drugs and for the “excitement” he derived from risk-taking inherent in criminal adventures. 

1. In August 1997, on a train, the respondent exposed his erect penis to a woman with whom he was unacquainted.  He was awarded probation by the Children’s Court.  In June 1998, he was ordered to perform community service for a drug offence and stealing.  In February 2000, he was awarded two years probation for offences that   included two indecent assaults: touching, when intoxicated, the breasts of girls the respondent knew.  He was before the Magistrates Court twice more in 2000.  In May 2001, he was first ordered into imprisonment – for a contravention of bail conditions.

1. In September 2001, the respondent was sentenced to imprisonment for 27 months.  The sentence was suspended after eight months, for three years.  These were not sexual offences.  But, within weeks of his release, the respondent committed the most serious of his sexual offences (as well as other offences, including entering a dwelling and committing an indictable offence, and stealing). 

1. The respondent approached his victim at a train station.  She was a 23 year old Chinese national in Australia to study English.  He boarded a train with her, sat next to her, and put his arm around her.  When she alighted, he got out and followed her.  She ran.  He pursued her.   When he caught her, he told her he needed a girl to sleep with.  She tried to run away.  He grabbed her.  She fell, hitting her head on the ground.  He dragged her into an alcove.  He hit her head several times.  She lost consciousness.  When examined, her underwear was torn.  She had soreness to the vagina and bruising to the neck.  The respondent told the police that he was under the influence of “speed” and could not remember much about the assault. 

1. He was sentenced to imprisonment for six years. 

1. In November 2004, he received a one-month cumulative sentence for possession, in custody, of prohibited articles. 

1. Dr Beech saw the respondent in January 2007 to prepare a risk assessment.  Dr Beech concluded that the respondent was a person of low average intelligence, with a long history of criminal offending that had been preceded by childhood conduct disorder and juvenile delinquency.  The pattern of behaviour was consistent with anti-social personality disorder. Although the respondent had psychopathic personality traits, in Dr Beech’s opinion, he did not “score in the realm of psychopathic personality”. 

1. Dr Beech found that the respondent was, by nature, impulsive – a diagnosis consistent with the respondent’s institutional misbehaviour. 

1. Dr Beech recorded that the sexual offending occurred in the context of substance abuse and intoxication.  That offending had also increased in severity, progressing from wilful exposure, to indecent assault, to assault with intent to rape.  The last offence was of particular concern, given the stalking and violence involved.

1. In his report written a year ago, Dr Beech said that the respondent was at high risk of re-offending, because he seemed likely to resort to drug use on release and, in an intoxicated state, would be prone to sexual offending.

1. By the time he testified, Dr Beech had considered later reports of other psychiatrists, Professor James and Dr Moyle.  He had also learned that, since he had seen him, the respondent had been found, more than once, to have had a contaminated urine test, indicating use of illicit drugs in custody.

1. Dr Beech considers that the risks of sexual re-offending relate to the respondent’s anti-social nature, his tendency to impulsivity, and the likelihood of reversion to drugs.  To reduce the risk of re-offending in a sexually violent way, the respondent needs to be drug free, complete a sexual offender treatment program and engage in pro-social activities, such as work and effective relationships with women.

1. In Dr Beech’s opinion, it would be better were the respondent treated in custody for his drug abuse.  Custody would provide a structured environment in which to complete the program.  It would also mean that he would not be in the community before finishing the course, thereby affecting the risk of relevant re-offending. 

1. The respondent completed a substance abuse program in prison.  As Dr Beech observed, neither that course nor the respondent’s later preparation of a detailed drug relapse prevention plan, has deterred the respondent from illicit drug use.  In Dr Beech’s opinion, this drug use in custody indicates that the respondent is unlikely to remain drug free if released, even if he then undertakes courses and implements other initiatives (such as joining Narcotics Anonymous). 

1. Dr Moyle regards the respondent as firmly entrenched in the criminal lifestyle, pointing to the long history of not complying with conditions of parole, fine option orders, probation conditions and directions concerning conduct in custody.  As Dr Moyle sees the respondent, “he has an excitement driven lifestyle including enjoying the effects of alcohol and drugs and the rush of crime … In jail he has received sanctions for assaultive behaviours, drug offences, disobedience type offences and being found with items … he should not have …”

1. Dr Moyle concludes that, absent compliance with a stringent supervision order, the respondent poses a high risk of sexual re-offending, which “may involve violent rape if he cannot convince the woman into a sexual liaison”.  He considers that the respondent has not addressed dependence on anti-social peers. 

1. In Dr Moyle’s view, any supervision order would require strict conditions limiting access to potential victims.  The regime would need to allow time for the respondent to mature, free of substances of abuse.  He also believes that the respondent’s risk of sexual re-offending could be lowered by getting work immediately, which should assist in his developing a positive self-esteem.  He needs to find means to avoid reversion to substance abuse; and he needs social education, especially in relating to women.  But Dr Moyle thinks it unlikely that the respondent would comply with the proposed supervision order.

1. Dr Moyle also considers that the prospect of relapsing into drug use has great significance for the prospect of sexually violent re-offending.  But avoidance of drugs would not altogether eliminate the risk, mainly because of the excitement the respondent derives from criminal, including unlawful sexual, activity.  Dr Moyle is concerned about the respondent’s general lack of social skills.  He needs to develop therapeutic relationships to assist him.  Employment would reduce the risk of relevant re-offending.

1. Professor James examined the respondent on 18 January 2008.  He diagnoses the respondent as having an anti-social personality disorder and a substance dependence disorder (in remission as a result of imprisonment).

1. Professor James has a somewhat more optimistic view of the respondent’s prospects of not relevantly re-offending.  If the respondent does not undergo further, intensive treatment directed towards avoiding relapse into drug dependency, the risk of his doing so would be high.  But were he to remain abstinent from drugs, the risk of sexually re-offending would be “moderately low”.  

1. In Professor James’s view, it is important for the respondent to find a meaningful occupation and exposure to a social group that is not going to put him at risk of substance abuse.  A late night curfew would, he thinks, be an essential restriction.

1. Professor James considers that the respondent is likely to be a more active and willing participant in a drug treatment program if the course is offered while he is in the community.  For that reason, he expects that a community-based program is likely to be more effective in reducing the risk of relapsing into illicit drug use. 

1. Professor James is not so pessimistic as Dr Moyle about the prospects of the respondent’s compliance with a supervision order.  He thinks it would be useful for the respondent to be in a position where, in the community, he can “exert his own agency and his own autonomy”.  The restrictive environment of a prison is triggering resentment.  The respondent is not anxious to remain in custody and would, in Professor James’s assessment, regard the prospect of a return to a custodial environment as “quite a deterrent” from relapsing into use of illicit drugs. 

1. By s.13(4) of the Act the Court, in considering whether a prisoner is a “serious danger to the community”, must consider not only the psychiatrists’ reports  but also the extent to which the prisoner co-operated in the examinations by the psychiatrists.  He co-operated adequately. 

1. The other material factors (see s.13(4)(b)-(h)) have already been canvassed in discussing the grounds upon which the psychiatrists have arrived at their opinions.

1. The respondent’s past conduct has involved non-compliance with court orders, bail conditions and, while he has been detained in custody, directions.  There are, however, indications that he is anxious to avoid a return to custody.  His release  cannot be risk-free.  But the constraints in the suggested requirements of the supervised release – in particular, those directed towards avoiding drug relapse – have prospects of success, especially if the respondent can restrain his impulsivity.

1. The respondent, who is due for full-time release later this month, is willing to submit to supervised release.  In addition to the standard requirements (see s. 16), he agrees to abstain from alcohol and illicit drugs, and to submit to random drug testing.  The proposed order would also require him to receive treatment from counsellors or health professionals and to submit to curfew and electronic monitoring.

1. The Attorney-General, however, contends that the respondent ought to be detained for treatment:  specifically, a 21 week high-intensity substance abuse program that can only be delivered in prison.  Programs with an equivalent prospect of reducing the risk of drug recidivism are available in the community.  Nonetheless, the Attorney-General contends for the custodial program, largely because of concerns about the respondent’s capacity to control his impulsivity – a tendency which was emphatically exemplified by his taking subutex when, late last year, he  heard about this application for his continued detention.

1. Suitable drug programs exist outside prison.  And I accept Professor James’s opinion that the respondent’s chances of successfully completing a drug relapse prevention course and participating in counselling are likely to be enhanced in the community.

1. For about the first month after release, the respondent should undergo almost daily drug screening tests.  He will have a job to go to.  He says he will participate in a drug rehabilitation course and counselling, and also attend Narcotics Anonymous (and arrange to have a sponsor).  If tempted to use drugs, he will, he swears, ask for help.

1. The respondent explains his having resorted to subutex late last year as resulting from concern about this application “and the thought that I was going to spend the rest of my life in jail”. 

1. It is, as Mr Hunter submitted, a serious matter that the respondent reverted to illicit drugs under the stress of this application. But his continued detention for a year to complete a 21 week intensive drug relapse prevention program in a custodial setting is not more likely to reduce the risk of relapse to illicit drug use than participation in suitable programs and counselling in the community. And although he could resort to amphetamines and impulsively commit a sexual offence before his drug use was detected, in all the circumstances, “adequate protection of the community” (see s.13(6) of the Act) does not require continuing detention. 

1. There will accordingly be an order for supervised release on the conditions proposed.

1. The order will subsist for ten years – the duration indicated in the evidence of Dr Moyle and Dr Beech, and which the respondent does not oppose.

1. The requirements of the supervised release will be that the respondent must:

(i)                be under the supervision of a corrective services officer;

(ii)               report to a corrective services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence within 24 hours of his release from custody, and at that time advise the officer of the respondent’s current name and address;

(iii)              report to, and receive visits from, a corrective services officer at such frequency as is determined by Queensland Corrective Services;

(iv)              notify and obtain the approval of a corrective services officer for every change of the prisoner’s name at least two business days before the change occurs;

(v)               submit to and discuss with a corrective services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;

(vi)              notify the corrective services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed;

(vii)             seek the permission of and obtain approval from a corrective services officer prior to entering into an employment agreement or engaging in volunteer work  or paid or unpaid employment.

(viii)            reside at a place within the State of Queensland as approved by a corrective services officer;

(ix)              not reside at a place by way of short term accommodation including overnight stays without the permission of a corrective services officer;

(x)               seek permission and obtain the approval of a corrective services officer prior to any change of residence;

(xi)              not leave or stay out of Queensland without the written permission of a corrective services officer;

(xii)             not commit an indictable offence;

(xiii)            not commit an offence of a sexual nature;

(xiv)            comply with every reasonable direction of a corrective services officer;

(xv)             respond truthfully to enquiries by corrective services officers about his whereabouts and movements generally;

(xvi)            not have any direct or indirect contact with a victim of his sexual offences;

(xvii)             notify the authorised officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use; 

Drug/Alcohol Conditions

(xviii)         abstain from the consumption of alcohol;

(xix)            abstain from the use of illicit drugs;

(xx)             take prescribed drugs as directed by a medical practitioner;

(xxi)            submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a corrective services officer; 

Intervention Conditions

(xxii)           attend upon and submit to assessment and/or treatment by a psychiatrist, psychologist, social worker, counsellor or other heath professional as directed by the authorised corrective services officer at a frequency and duration which shall be recommended by the treating intervention specialist, the expense of which is to be met by Queensland Corrective Services;

(xxiii)          permit any medical, psychiatric, psychological or other mental health practitioner to disclose details of treatment, intervention  and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending this supervision order and/or ensuring compliance with it;

(xxiv)          attend any program, course, psychologist or counsellor, in a group or individual capacity, as directed by an authorised corrective services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate; 

Curfew and Monitoring Conditions

(xxv)           submit to curfew and electronic monitoring as directed by a corrective services officer.