Attorney General for the State of Queensland v. Spence

[2007] QSC 218

[2007] QSC 218

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MULLINS J

No BS3957 of 2007

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND	Applicant
and
PHILLIP JAMES SPENCE	Respondent

BRISBANE

..DATE 20/08/2007

ORDER

HER HONOUR:  This is an application by the applicant pursuant

to section 13(5) of the Dangerous Prisoners (Sexual

Offenders) Act 2003 ("the Act") for an order that the

respondent be detained in custody for an indefinite term for

care, control or treatment, or alternatively that the

respondent be released from custody, subject to such

conditions as the Court considers appropriate and that are

stated in the order.

The respondent was convicted after trial on 11 March 1999 of

one count of rape and one count of disabling in order to

commit an indictable offence, namely rape.  He was sentenced

respectively to nine years and eight years imprisonment.  The

terms were concurrent.  Each of the offences was declared to

be a serious violent offence.

That imprisonment dated from 21 August 1998, the date of the

offences, and the date on which he was arrested and charged

and held in custody.  His current period of imprisonment

expires on 20 September 2007 as he is serving an additional

one month on top of the nine years for unpaid fines relating

to driving offences.

The application was initiated as a result of the respondent's

history.  He was sentenced on 14 October 1988 when he was

20 years old for the offence of rape.  He was sentenced to

five years on the presentation of an ex officio indictment.

That offence was one in which alcohol was involved and which

the respondent accepted involved nonconsensual sexual

intercourse.  He was immediately remorseful after that offence

and the sentence took place about three weeks after the

offence was committed.

The term of imprisonment that was imposed on that occasion

reflected the remorse and the cooperation with the

administration of justice.

The respondent's criminal history shows other offences but of

less relevant nature.  There are minor drug offences, and a

stealing offence.

The respondent has maintained that the sexual intercourse and

the circumstances surrounding that sexual intercourse that

resulted in the two convictions after trial in March 1999 was

consensual.  He admits and has always admitted that alcohol

and cannabis sativa were involved in the circumstances that

resulted in that sexual intercourse.

Psychiatrist, Dr Robert Moyle, examined the respondent in

2006 for the purpose of the consideration by the authorities

of whether or not to make this application.  As a result of Dr

Moyle's report, this application was made and Professor James

and Dr Lawrence were appointed by the Court to conduct

independent psychiatric evaluations of the respondent for the

purpose of this application.

Both Professor James and Dr Lawrence gave short oral evidence

to supplement their reports on the hearing before me today.

Both Professor James and Dr Lawrence supported the release of

the respondent on a supervision order.

From the materials provided to both psychiatrists and their

respective examinations, they reached similar conclusions

about the prognosis for the respondent on his release.  Some

of the common comments that have been made in the reports

about the respondent are that he is intelligent and that he

has no history of any paedophiliac interests or behaviour.

He has shown by his two previous episodes resulting in

convictions for rape that he has been prone to anti-social

traits and there is consensus that that is probably

attributable to the disadvantage in his upbringing and

particularly his dysfunctional relationship with his mother.

He has done a number of courses while in custody.  In 2003 he

completed an Anger Management course and Cognitive Skills

course.  In 2005 he satisfactorily completed a Substance Abuse

Preventing and Managing Relapse program.  In 2006 he did the

Getting Started Preparation program for a Sexual Offenders

Treatment Program.

He has not done the Sexual Offenders Treatment Program as

such.  This obviously has something to do with both the

timing during his incarceration at which consideration was

given to his undertaking such a program, but also to the

conclusion that it was ill-advised for the respondent to do a

program at the same time as others who were child sex

offenders because of the antipathy that the respondent had

expressed towards child sex offenders.

Both Professor James and Dr Lawrence do not consider the fact

that the respondent has not completed a Sex Offender Treatment

Program as an impediment to his being released.  The fact that

he has not done the program, however, is one of the reasons

for some of the conditions that are in the proposed

supervision order and for the emphasis in the supervision

order for the respondent to be given opportunity for

counselling to assist him in the transition from the

institutional environment to unrestricted community living.

Professor James has noted that the history of the respondent's

offending, and particularly the sex offences, involved

considerable prior imbibing of alcohol and that added

significantly to the respondent's disinhibition and lessening

of impulse control at the relevant times.

Professor James notes that the respondent has undergone a

process of biological maturation during his time in prison

which appears to have lessened his relatively poor impulse

control.

Professor James considers that a program of psychological

therapy on the respondent's release would assist him in

developing relationships with women, including those with whom

he is related such as his daughter and the mother of his

daughter.

Without a supervision order Professor James considered that

the respondent was a medium to a low risk of reoffending in a

similar way to that which he had offended previously.

Dr Lawrence interpreted her clinical assessment as well as her

assessment on using risk assessment tools as indicating a

moderate to low risk of reoffending on the part of the

respondent without the benefit of a supervision order.

Dr Lawrence also identifies the respondent's abuse of illicit

substances, and in particular cannabis sativa, and alcohol

abuse as relevant to his offending in the past and

potential difficulties for the respondent on his release.

The respondent has been without cannabis sativa for some nine

years whilst in prison.  He realises that he has to abstain

from illicit substances and is prepared to abstain from

alcohol for the duration of the supervision order in order to

reduce the risk of reoffending.

Dr Lawrence suggests that the focus of therapy for the

respondent on his release should be on his relationships and

his ability to relate to women generally and also with

adaptive coping strategies and support for him in the

transitional period particularly.  Dr Lawrence suggests the

conditions of supervision should be imposed for a period of

five years.  Both Professor James and Dr Lawrence see that

period as one which will allow for reducing control of the

respondent.

It will be a matter for the authorised Corrective Services

Officer who is assigned the supervision of the respondent

under the supervision order to ensure that the respondent gets

the real benefit of the supervision order by having the

conditions monitored and their application diminished as time

passes if the respondent's response to them is satisfactory.

The evidence of the psychiatrists, Professor James and

Dr Lawrence, is acceptable and cogent and satisfies me to the

high degree of probability that is required under the Act that

the respondent's moderate to low risk of sexual reoffending

(unless appropriately supervised) is an unacceptable risk in

terms of subsection 2 of section 13 of the Act.

In the light of the psychiatric evidence I am satisfied that

appropriate conditions can be formulated for a supervision

order that will address the need to ensure the adequate

protection of the community and I am therefore satisfied that

a supervision order should be made.

Much of the oral argument on the hearing of this application

and the evidence of the psychiatrists was directed towards the

conditions of the supervision order.  At the commencement of

this hearing Mr Kent, of counsel, for the applicant produced a

draft of a supervision order.  During the course of the

hearing changes were made to that draft to meet concerns

expressed by Mr Hamlyn-Harris of counsel on behalf of the

respondent.

Most of the argument then focussed on two sets of conditions,

one of which concerned the curfew and electronic monitoring

and the other concerning the notification to the authorised

Corrective Services Officer of the name and contact details of

any woman who was within the respondent's support network or

with whom he is to have a personal relationship.

On the issue of the curfew and electronic monitoring, I accept

that a curfew per se is not, as a stand-alone condition,

necessary, but it is proposed on behalf of the applicant as a

condition to facilitate electronic monitoring.  The form of

electronic monitoring utilised by the Corrective Services is

one that requires the person who is wearing the monitoring

device to be close by the monitoring unit.  That is why the

curfew is required.  In effect the monitoring only will be

effective during the time that the respondent is at the

approved place of residence.

Professor James was in favour of the monitoring as assisting

the respondent in going from the very structured environment

that he has been in for the last nine years to the

unstructured environment of the community.  Ideally it would

be best if the respondent could exercise the controls that are

necessary to avoid reoffending.  His history, though, shows

that he has had problems in the past.  His first imprisonment

for a rape did not prevent him from being in a situation where

he was then found guilty of another rape.  Dr Lawrence was

not quite as in favour of the electronic monitoring as

Professor James, but did concede that for six to 12 months the

respondent would gain some benefit from the more intense

supervision that electronic monitoring obviously does entail.

It is hoped that the Corrective Services Officer who

supervises the respondent and will have the power upon review

of the curfew and electronic monitoring each three months to

take into account the respondent's performance of and

compliance with the supervision order will consider whether

the continuation of electronic monitoring and therefore the

curfew is really justified.

I therefore am satisfied that it is appropriate to include in

the supervision order  conditions 25, 26 and 27 that relate to

electronic monitoring and the curfew.

There was much debate about condition 28.  I have amended it

so that there is an obligation on the respondent to notify the

authorised Corrective Services Officer of the full name and

contact details of any female person within his support

network or with whom he is having a personal relationship.

That obligation will not extend to the respondent's daughter,

the mother of his daughter, the maternal grandmother of his

daughter, his sisters and his mother.  These are women that it

is clear on the material he will resume a relationship with

and there is no need to have the prior notification or

notification that is required under condition 28.

The applicant sought an order that the respondent would, if

directed by his supervising officer, make disclosure of the

relevant terms or matters of the supervision order and the

nature of his past offences to any person nominated by the

supervising officer, the intention being that if the

Corrective Services Officer was advised by the respondent that

he was proposing to have a relationship with a named woman,

that the supervising officer would have the power to

mandatorily require the respondent to disclose the supervision

order and the nature of his past offences.

Ideally the respondent will need to address the matters of the

disclosure of his past and the constraints of the supervision

order to any woman with whom he is building a relationship and

I would expect that during the course of his regular contact

with the Corrective Services Officer who is supervising him he

will disclose these matters to that Corrective Services

Officer in response to questions about whom he is seeing and

what he is doing with his time.  It will be a matter obviously

for the respondent to deal with the development of his

relationship.  If the authorised Corrective Services Officer

has any concerns about the issue of disclosure, that can be

dealt with by other provisions that give powers to the

supervising Corrective Services Officer such as referring the

respondent for counselling.

I am not persuaded that in the light of all the conditions of

the supervision order it is necessary to allow the Corrective

Services Officer to have the power of mandatorily directing

the respondent as to the timing of the disclosure to any

woman that he is building a relationship with.  There are

other means, as I have indicated, for the Corrective Services

Officer to deal with any concerns that the Corrective Services

Officer may have about the development of that relationship.

I therefore make an order in terms of the draft supervision

order as amended which has been initialled by me and placed

with the file.

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