Attorney-General for the State of Queensland v TNT

[2020] QSC 350

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v TNT [2020] QSC 350

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
TNT

(respondent)

FILE NO/S:

BS 5545 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application filed 25 May 2020

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Ex tempore on 9 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

9 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 9 November 2020 for a period of 10 years until 22 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 that the respondent be detained in custody for an indefinite term for care, control or treatment – where the applicant alternatively 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 ten 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

Crimes Act 1961 (NZ), s 128B
Criminal Code (Cth), s 474.19
Criminal Code (Qld), s 210, s 228D, s 349, s 350
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), Part 2 Division 3

COUNSEL:

B Mumford for the applicant

C Smith for the respondent

SOLICITORS:

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

HIS HONOUR: This is an application for an order under part 2, division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003, which I’ll refer to as the Act. The application is for a continuing detention order or, as the submissions ultimately have been made, for a supervision order.

The respondent is 36 years of age.  He has been imprisoned for nearly all of the last nine years.  His full-time release date expires in a couple of weeks. 

There were 58 offences that constituted the index offences.  They were committed between 15 February 2010 and 23 November 2011.  All were sexual offences against or involving children. 

The most serious was rape under section 349 of the Criminal Code. There were 15 offences of indecent treatment of a child under 16 under section 210 of the Criminal Code, of which eight were taking photographs. There were 34 offences of using a carriage service to transmit, make available, publish, distribute, advertise or promote child pornography material under section 474.19 of the Criminal Code of the Commonwealth, seven offences of using a carriage service to cause child pornography material to be transmitted to himself, also under section 474.19, and an offence of possessing child exploitation material under section 228D of the Criminal Code. 

For the offence of rape the respondent was sentenced to nine years imprisonment with lesser concurrent periods of imprisonment imposed for the other offences.  The rape comprised penile penetration of the vagina of an eight-year-old girl who was the daughter of the respondent’s partner or girlfriend.  The respondent recorded the act in one of approximately 30 sexual images of the girl.  Other images recorded by him depicted her underwear with a focus on her vagina, her exposed vagina, his penis near her exposed vagina and him ejaculating on her buttocks. 

The other indecent treatment offences involved two other girls aged 10 years.  One was the respondent’s stepsister.  The other was a friend of hers.  The respondent took 15 images of his stepsister, including one in her underwear and eight of her vagina with her underwear pulled to one side and six images of her labia being separated by his fingers.  There were a further 40 images, 22 of them showing her asleep with him removing her tights and underwear at various stages.  The respondent took 10 images of the stepsister’s friend showing her shorts being lifted to expose her underwear and her underwear under the bed next to her while she slept. 

The offences involving the use of a carriage service comprised the respondent using four different email addresses to correspond and exchange child pornography material with 36 others. 

The offence of possessing child exploitation material comprised approximately 11,000 images found in the respondent’s possession.

On 9 December 2010 the respondent was convicted of an offence of rape under section 349 of the Criminal Code, and an offence of attempted rape under section 350.  The offences were committed on or about 11 June 2010.  The respondent was sentenced to two years imprisonment, suspended for two years after serving two months. 

After a night of drinking the respondent, the 24-year-old victim, and her friend, went to the victim’s residence.  The victim fell asleep on her bed fully clothed.  She awoke to the respondent having pulled down her underwear and leggings, and penetrating her vagina with at least two fingers, which constituted the rape.  He then attempted to insert his penis into her vagina, which constituted the attempted rape. 

On 13 April 2005 the respondent was convicted of sexual violation by unlawful sexual connection with a child under 12 under section 128B of the Crimes Act 1961 of New Zealand in the High Court of New Zealand.  The offences were committed on 11 April 2004, or thereabouts.  He was sentenced to three years imprisonment. 

The respondent was looking after his three-year-old daughter over the Easter long weekend.  Although separated from the daughter’s mother, he regularly looked after the daughter.  At some stage during the weekend he placed his penis in his daughter’s mouth. 

On 17 January 2008 the respondent was convicted of breaching a condition of his release on parole for the New Zealand sexual violation offence by having contact with a person under the age of 16 years without the direct supervision of an approved adult.  The offence was committed on 15 December 2007.  He was sentenced to imprisonment for 14 days. 

In support of the application for a continuing detention order or supervision order, the applicant tendered the following: 

(a) an affidavit of a program delivery officer employed by Queensland Corrective Services for sexual offenders; 

(b) an affidavit by Dr Scott Harden, obtained for an application under section 5 of the Act exhibiting a report by Dr Harden; 

(c) an affidavit by the general manager of the Maryborough Correctional Centre containing copies of documents extracted from the prison’s files relating to the respondent; 

(d) an affidavit from a senior principal lawyer employed by the Crown Solicitor exhibiting copies of documents from the court proceedings mentioned above involving the respondent; 

(e) an affidavit from the Director of Legal Services employed by the Parole Board of Queensland exhibiting copies of the documents extracted from the Board’s files; 

(f) an affidavit from the Deputy Director of Public Prosecutions exhibiting copies of documents extracted from that officer’s files relating to the respondent

(g) a supplementary affidavit of the general manager of the Maryborough Correctional Centre exhibiting further copies of documents from the prison’s files; 

(h) an affidavit by a senior psychologist employed by Queensland Corrective Services in relation to interviews with the respondent relating to potential treatment for the respondent in sexual offender programs; 

(i) an affidavit of a program delivery officer employed by Queensland Corrective Services in relation to further interviews as to potential treatment for the respondent in relation to his sexual offending;

(j) a risk assessment report prepared by Dr Michael Beech dated 17 August 2020; 

(k) a risk assessment report prepared by Dr Evelyn Timmins dated 30 September 2020; 

(l) a further affidavit by the general manager of the Maryborough Correctional Centre exhibiting copies of documents extracted from the prison’s files; and

(m) an affidavit by the acting manager of the High Risk Offender Management Unit of Community Corrections, Queensland Corrective Services, as to the methods of managing an offender release on a supervision order. 

As well this morning a further affidavit was tendered, being from a victim of one of the offences. 

In accordance with the practice direction, written submissions have been filed by both the applicant and the respondent, and they are not in significant dispute about what the outcome of the application should be. 

This is an application made for the first time in relation to the respondent for an order under part 2 division 3 of the Act. Generally speaking, the psychiatrists’ opinions as to the respondent’s history and diagnosis are consistent, but there are some differences of opinion as to the respondent’s risk of committing a serious sexual offence if released on a supervision order.

In Dr Beech’s opinion the respondent has a paedophilic disorder, attractions to female children non-exclusive, a fetishistic disorder, possible sexual arousal to children’s underwear, a polysubstance use disorder, particularly alcohol in more recent years but now in enforced remission, and Cluster B personality disorder traits, being self-esteem issues, interpersonal difficulties, problems with anger and impulsivity, and difficulties with boredom. 

Dr Beech considers the respondent’s offending to be notable for its chronicity and persistence.  It has been predominantly against young females who have been in his care, although he offended against an adult female in 2010, which indicates diversity in offending.

In Dr Beech’s opinion the respondent does not have an antisocial personality disorder.  On the Hare Psychopathy Checklist-Revised Dr Beech scored him 13 out of 40, indicating that he is not psychopathic.  On Static-99R Dr Beech gave him a score of five, which is less than Dr Harden scored him in 2019, or found by prison psychologists.  A score of five places the respondent in the group of offenders who are seen in the moderate to high risk category of reoffending. 

On the Risk for Sexual Violence Protocol Dr Beech noted the respondent’s chronicity of sexual violence;  diversity of sexual violence;  escalation of sexual violence in nature, amount and duration;  problems with self-awareness;  problems with stress or coping;  problems resulting from child abuse;  sexual deviance;  problems with substance abuse;  problems with intimate relationships;  problems with non-intimate relationships in the community;  problems with employment in the community;  problems with treatment;  and problems with supervision, instanced by the breach of parole and suspended sentence. 

Taking all those factors into account, in Dr Beech’s opinion the respondent would be at high risk of reoffending if released unsupervised in the community.  Dr Harden and Dr Timmins have the same view as to that particular risk. 

Although Dr Beech noted a number of positive factors or significant gains the respondent has made in prison, against that positive scenario there were issues that the respondent had not used the time in prison to pursue rehabilitation treatment needs, and had not developed any formal strategies or plan to lessen the risk of reoffending, suggesting that his return to the community is likely to be destabilising.  His paraphilia is both untreated and likely to be life-long, and a recent prison violation may point to ongoing sexual deviance. 

However, in Dr Beech’s opinion a supervision order would reduce the risk to moderate or low/moderate.  If the respondent were to be released under a supervision order, Dr Beech considered that the order should contain a specific condition around psychological treatment, focusing on deviant sexual arousal and behaviour, problem solving and emotional regulation;  a condition prohibiting the respondent from unsupervised contact with children;  a condition around relationships with adults who have children;  prohibitions on substances, including alcohol;  and conditions that allow for monitoring and reporting of any online activity. 

Dr Harden’s views are similar to Dr Beech’s, and, perhaps, even slightly less pessimistic in terms of the degree of the risk, but they are close. 

In Dr Timmins’ opinion, the respondent will be a high risk of reoffending if released into the community without a supervision order.  In her view, he is likely to reoffend initially through the internet by finding and viewing child exploitation material, and he is likely to be avoidant and deceptive in behaviour.  She opines he may go on to contact offending, including possible rape offences, and is more likely to offend against underaged females he has access to than an adult female.

In her view, his offending is driven by a sexual deviance, being paedophilia; he has poor insight into his sexual behaviour and is avoidant of treatment, which is likely an attempt not to address his issues and the risk he represents to the community of sexual offending.  In her view, he requires intensive treatment for his sexual offending, and possible interventions around his substance abuse. 

In Dr Timmins’ view, if the respondent were released on a supervision order, he would require support from a forensic psychologist to treat his sexual offending and deviance.  She suggests he consider antilibidinal treatments.  In Dr Timmins’ view, although the respondent’s risks may be modified by a supervision order, he would most likely fall into the moderate to high risk category, although she considered that if he engaged in treatment for his sex offending his risk is likely to be modified further. 

The applicant bears the onus of proof to satisfy the Court that the respondent is a danger to the community in the absence of a division 3 order. The Court may only decide that it is so if it is satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the decision.

In deciding that question, the Court must have regard to the range of factors listed in section 13(4) of the Act, which engages a wide range of factors, including the need to protect the members of the community from the risk that the respondent will commit another serious sexual offence. The applicant submits, and the respondent accepts, that the finding should be made that the respondent is a serious danger to the community in the absence of a division 3 order.

Having regard to the reports produced under section 11 of the Act, and the other relevant information, the pattern of serious sexual offending by the respondent, his other antecedents and criminal history, the sufficiency of his efforts to address the cause or causes of his offending behaviour, and the limited effect of his participation in a rehabilitation program in New Zealand, I am persuaded to make the finding that the Court is satisfied that the respondent is a serious danger to the community in the absence of a division 3 order. I have no doubt that such a finding should be made.

First, the history of the respondent’s sexual offending against children from 2004 to 2011, and the escalating nature of that offending, is of the greatest concern.  It might be thought that concern is increased by the offending against an adult female in 2010.  However, in my view, that offending is of lesser concern as it does not conform to the respondent’s obvious and diagnosed paraphilia. 

Second, it does not appear that previous treatment as a sexual offender in New Zealand has had any effect on the respondent’s paedophilic offending trajectory.  He is now resistant to further treatment, and he has refused to engage voluntarily in either group sexual offender programs, or to take advantage of an offer of individual psychological counselling.

Third, the diagnoses of a paedophilic disorder, a fetishistic disorder, and a polysubstance abuse disorder, and other personality traits and other information disclosed by the respondent to the psychiatrists who carried out the risk assessment reports, all support the psychiatrists’ strongly expressed opinions as to the high risk of the respondent committing a serious sexual offence against a child, or involving a child, if released into the community without a supervision order. 

The applicant submits that the respondent should be detained in custody under a continuing detention order on the ground that the adequate protection of the community cannot be reasonably and practicably managed by a supervision order, and the requirements under section 16 of the Act cannot be reasonably and practicably managed by a Corrective Services officer, at least it does so in its written submission. 

In my view, that contention should not be accepted.  A supervision order containing the requirements identified and suggested by the draft order will reasonably and practicably manage the adequate protection of the community, and the requirements under section 16 of the Act can reasonably and practicably be managed by Corrective Services officers under such an order.  The respondent may be a higher risk of committing a serious sexual offence if released on a supervision order than some other offenders who are released on such an order, but nothing in the evidence leads me to the conclusion that the risk he presents is not one able to be reasonably and practicably managed by a supervision order. 

The repulsive nature of the respondent’s offending against his daughter, stepsister and stepsister’s friend at such young ages makes it difficult to countenance the prospect that any degree of risk of reoffending of that kind by the respondent is to be accepted, but that is not the question posed by the Act.  Asking the statutory questions and applying the evidence to them, the proper conclusion, in my view, is that the respondent should be released on a supervision order subject to strict conditions to reduce the risk of reoffending of that kind.  The supervision order should be for a period of 10 years. 

I have initialled the draft order in accordance with the alterations that have been discussed during submissions.