Attorney-General for the State of Queensland v Valence

[2010] QSC 335

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Valence [2010] QSC 335

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF
QUEENSLAND
(applicant)
v
KERRY PATRICK VALENCE

(respondent)

FILE NO:

BS2941 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application for review

DELIVERED ON:

8 September 2010 (ex tempore reasons)

DELIVERED AT:

Brisbane

HEARING DATE:

8 September 2010

JUDGE:

Mullins J

ORDER:

Order as per draft initialled by Mullins J and placed with the file

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER MATTERS – where respondent has served a term of imprisonment for sexual offences – where respondent currently under a continuing detention order – application for review of continuing detention order by Attorney-General under s 27 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) – where applicant sought an order pursuant to s 30 of the Act affirming the original decision that the respondent was a serious danger to the community in the absence of a division 3 order – whether evidence is of sufficient weight to affirm the decision – where decision was affirmed

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27, s 30

COUNSEL:

J B Rolls for the applicant

K Prskalo for the respondent

SOLICITORS:

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

HER HONOUR:  The applicant has made application pursuant to
section 27 of the Dangerous Prisoners (Sexual Offenders) Act
2003 (the Act) that the continuing detention of the
respondent, Mr Valence, be reviewed.

On 13 August 2009 her Honour Justice White ordered that the
respondent be detained in custody for an indefinite term of
care, treatment and control (Attorney-General for the State of
Queensland v. Valence [2009] QSC 255).

Mr Valence is currently 53 years old.  His history of sexual
offending is summarised in Justice White's decision, including
the offences that resulted in his imprisonment for four years
with a full-time discharge date of 29 August 2009.  He remains
in prison, having completed those sentences, because of the
continuing detention order made by her Honour Justice White.
That order was made because the applicant made an application
under the Act that the respondent be dealt with under the Act.

Justice White in her decision summarised the psychiatric
assessments that were relied on for the purpose of that
application that were provided by Dr Moyle, Dr Beech and
Professor James.  Dr Beech had concluded that Mr Valence is an
“insightless recidivist sex offender with a poor attitude to
treatment and no reasonable plans to limit his risk.”  Dr Beech noted that the respondent has very few supports and
significant substance abuse problems.  Dr Beech expressed the
opinion that the respondent's risk of reoffending could be
reduced by his participation in a high intensity sexual
offender program with a subsequent development of a robust
relapse prevention plan that could, with supervision, be
monitored in the community.

Professor James' opinion concurred with that of Dr Beech.  It
is worth repeating Professor James' conclusion:

"His risks of recidivism are high and he should be
     required to complete the SOTP prior to release."

Since Justice White's decision, the respondent has undertaken
the Getting Started Preparatory Program which is a sex
offender program that is undertaken prior to a more intensive
sex offender treatment program.  The Getting Started
Preparatory Program involved 12 sessions that Mr Valence
attended between 9 November and 16 December 2009.  Mr Valence
did the program when it became available to him at Capricornia
Correctional Centre where he is imprisoned.  The exit report
for the program notes that Mr Valence was disengaged during
the initial stages of the program, but increased his
participation as the program progressed.  The exit report
concurs with the recommendations from the psychiatrists that
the respondent undertake the High Intensity Sex Offender
Program before release into the community under a supervision
order.

Professor James reassessed Mr Valence on 10 June 2010 for this
review application.  Professor James could not find any
material which would cause him to alter the view that he

previously expressed that the respondent attracted a diagnosis
of paedophilia of a predominantly homosexual nonexclusive type
and substance alcohol abuse which were currently in remission
as a result of imprisonment.  Professor James did not consider
that there had been any alteration to the actuarial findings
in his previous report and the dynamic considerations remain
the same.

In his reassessment Professor James concluded that:

"1.  Mr Valence remains a person with a high risk of
     reoffending if he were to be released from prison.

2.  The high level of risk would not be significantly
     reduced by the imposition of a supervision order upon his
     release.

3.  Mr Valence therefore should remain in custody in the
     interests of community safety.

4.  The respondent should be strongly encouraged and
     supported to participate in a high intensity sexual
     offenders treatment program."

Psychiatrist Dr McVie assessed the respondent on 23 April 2010
for the purpose of the review application.  Dr McVie had the
benefit of reviewing the earlier psychiatric assessments and
other material that had been made available to her by the
applicant in relation to the respondent's criminal history and
imprisonment.  Dr McVie's assessment included the following
statements:

"Mr Valence continues to minimise his offending history.
     He has made very few plans to deal with his attitudes and
     behaviours which have resulted in his past sexual
     offences.  He readily admits that he will continue to use
     alcohol and cannabis on release from custody if it is
     available to him.  He has no plans for where he wishes to
     live or for any meaningful employment on release from
     custody.  In some ways he feels content to remain in
     custody."

Dr McVie made the following recommendation:

"My primary recommendation at this point is that this
     program, the High Intensity Sexual Offenders Program,
     needs to be completed satisfactorily by him and then a
     re-evaluation of his attitudes, intentions, plans and
     behaviour needs to be completed on finalisation of the
     program in order to effectively evaluate his suitability
     for any type of supervised release."

The psychiatric evidence relied on by the applicant on this
application precludes any consideration of a supervision order
for the respondent at this stage.  The respondent must
undertake the High Intensity Sexual Offender Treatment Program
and his risk of sexual reoffending must be reassessed, if he
can successfully conclude that program, before supervised

release is a realistic option.  This is acknowledged to some
extent by the respondent through the instructions that he has
given his counsel to not oppose the continuing detention order
that is sought today by the applicant.

The psychiatric evidence before me on this review application
is acceptable, cogent evidence that satisfies me to the degree
of probability required under section 30(2) of the Act that
the evidence is of sufficient weight to affirm the decision of
Justice White made on 13 August 2009 that the respondent is a
serious danger to the community in the absence of an order
made pursuant to Division 3 of the Act and that the respondent
must continue to be the subject of a continuing detention
order.

I therefore make an order in terms of the draft initialled by
me and placed with the file.

I hope you listened to that, Mr Valence.  It's a very
pessimistic outcome for you unless you embark on HISOP.

-----