Attorney-General of the State of Queensland v Pearce

[2005] QSC 314

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION  [2005] QSC 314

ATKINSON J

No S1523 of 2005

ATTORNEY-GENERAL OF THE STATE OF QUEENSLAND	Applicant
and
JESSE SPENCER PEARCE	Respondent

BRISBANE

..DATE 16/08/2005

RULING

HER HONOUR:  On 25 February 2005 an originating application was filed in this Court seeking the following orders:

1.  that pursuant to section 8(2)(a) of the Dangerous
   Prisoners (Sexual Offenders) Act 2003 the respondent,
   Jesse Spencer Pearce, undergo examinations by two
   psychiatrists named by this Honourable Court who are to
   prepare independent reports, which reports are to be
   prepared in accordance with section 11 of the Dangerous
   Prisoners (Sexual Offenders) Act 2003;

2.  that pursuant to section 13(5)(a) of the Dangerous
   Prisoners (Sexual Offenders) Act 2003 the respondent
   Jesse Spencer Pearce be detained in custody for an
   indefinite term for care, control or treatment;

3.  in the alternative that pursuant to section 13(5)(b)
of the Dangerous Prisoners (Sexual Offenders) Act 2003
   the respondent Jesse Spencer Pearce be released from
   custody subject to such conditions as the Honourable
   Court considers appropriate and that are stated in the
   order.

On the 10th of March 2005 the Chief Justice made orders
pursuant to section 8(2)(a) appointing Dr Moyle and Dr Joan
Lawrence as the psychiatrists to prepare independent reports
in accordance with section 11 of the Dangerous Prisoners
(Sexual Offenders) Act.  Those reports were prepared and sent
to the Court.  The matter came on for hearing before me on the
date set down for hearing by the Chief Justice, on the 3rd and 4th of May 2005. 

On that occasion the very experienced senior counsel who appeared for the respondent throughout this application applied for an adjournment on two bases:  the first was to get proper instructions from his client, and the second was so that an assessment could be made of his client by a psychiatrist retained by the respondent.  I granted an adjournment for those reasons, and made an order for the respondent's detention until the determination of this matter. 

Mr Pearce was seen by Dr Ian Colls, a psychiatrist, who
also prepared a report as to Mr Pearce.  The reports are all
remarkably consistent.  Before turning to them and to the
matters of which I have to consider, I should mention his
criminal history. 

Mr Pearce was sentenced on 1 May 1997 to a total of 9 years' imprisonment after pleading guilty to 38 sexual offences against children.  Those offences were four counts of indecent dealing with a boy under 14 years of age for which he received four years' imprisonment; two counts of indecent dealing with a girl under 14 years of age for which he received four years' imprisonment; 10 counts of indecent dealing with a boy under 16 years of age for which he received four years' imprisonment; 9 counts of sodomy for which he received 9 years' imprisonment with a non-parole period of four years; two counts of permitting sodomy for which he received 9 years' imprisonment with a non-parole period of four years; one count of attempting sodomy for which he received 8 years' imprisonment with a non-parole period of four years; 2 counts of stupefying to commit an offence for which he received four years' imprisonment; two counts of indecent dealing with a child between the ages of 12 to 16 for which he received four years' imprisonment; two counts of committing an act of indecency for which he received 8 years of imprisonment with a non-parole period of four years, and four counts of possession of child photographs for which he received 9 months' imprisonment.

The learned sentencing judge, Healy DCJ, observed: 

"Your history of exploiting children over many years is an appalling one.  In sentencing you I am taking into account the fact that you cooperated with the authorities, that you readily admitted your own crimes and that you gave some assistance to the authorities relating to other persons who committed offences of this kind.  These matters should be taken into account in
your favour.  I cannot ignore the fact that you are suffering from a fatal illness and that you are 76 years of age.  In deciding the sentence which I should impose, however, your offences are so serious that the sentence I impose on you must reflect the concern that the community fears about sexual exploitation of children." 

An application was made for leave to appeal against the

sentence by the respondent.  That application was

unsuccessful.  The leading judgment of the Court of Appeal was

given by Justice White who outlined the circumstances in which

the offences came to light.  It seems almost fortuitous that

the offences came to light in the circumstances set out by her

Honour.  It was only because a complaint was made by a 14
year old boy who was approached by the respondent and who told his father what had been said to him that led the police to the respondent who warned him about his behaviour which, taken in isolation, did not seem particularly serious; however, the
police officer found certain items in his bag at his
accommodation at Byron Bay and made further inquiries of his
daughter-in-law at her home in a Brisbane suburb where a
number of his belongings were kept.  When those belongings
were searched it was found amongst them a small photograph
album containing a number of photographs of Asian children.  Behind some of those photographs were the four photographs which were the subject of charges against him.  Two of them depicted the respondent engaging in a sexual act with an Asian child which he admitted was attempted sexual intercourse which he was unable to effect.

As her Honour said, the applicant had come to Australia in
1996 from Thailand where he had been living for a number of
years teaching at a school for deaf children.  He admitted
when interviewed by the police that he had frequently gone to
Thailand for the purpose of engaging in sexual activity with
children, and also admitted that he was HIV positive and had
been so diagnosed in about September 1993.  Accordingly he was
convicted of indecent acts with children that had occurred
after he knew that he was HIV positive.

In the course of the police interviews he admitted he had been
a pedophile since he was about 22 years old.  He gave the
names of three children to the police.  They were interviewed by the police.  They, in turn, gave the names of other children.  Those offences dated back from the late 1960s to early 1970s. Her Honour talks about the corruption and debauchery of a great number of boys all around 13, 14 and 15 years of age and Mr Pearce's involvement in a ring of pedophile men who preyed on these boys who introduced other boys into the group.  His modus operandi was to groom these boys and to give them alcoholic liquor so that they became stupefied and more amenable to his advances.

Four of the counts involved a particular complainant who was
16.  He was made so drunk that he was violently ill, and after
lying down at the applicant's residence was in effect raped.
The last counts on the indictment concerned events that
occurred in 1990 when the applicant indecently dealt with two
young people who were cousins of one of the earlier victims.
As her Honour said, this outline of the offences shows a
lifetime of depravity and corruption.  However, it is true
that without his cooperation with the police it is unlikely
that this long history of criminal conduct would ever have
come to light.

The application for criminal compensation which is before me
made by one of the victims of these crimes shows the very
extensive permanent psychological and emotional damage
suffered by young people who are sexually abused in this way;
a matter which the respondent currently, to this day, does not
understand. 
The respondent is by now a very old man.  He was
born on the 20th of September 1920 and so is 84 years of age.
He has been HIV positive, as I have said, for a very long
period, but he has received what is described on all accounts
as optimum care in custody.  In fact it would appear that his
present good physical condition is almost entirely
attributable to the excellent care he has been receiving in
custody.  There is no dispute that he needs nursing home care
were he to be released from custody given his variety of
medical conditions, but particularly his HIV status.  He also
has other conditions which seem to require a high degree of
nursing home care, for example, he has faecal incontinence
from time to time; however, that seems to be related to his
excessive use of laxatives.  When he is discouraged from doing
that it is apparently not a problem; however, he does have
urinary incontinence, although if he has ready access to
toilet facilities his incontinence is not a problem.

He has a carer for virtually all the time.  He has been at
Wolston Correctional Centre and that level of care could only
possibly be replicated in a nursing home in the community and,
in fact, it seems from the evidence that there be such a high
level of care is unusual in any event anywhere in the
community.

I have previously set out in Attorney-General v. Fardon (2003)
QSC 331 delivered 2 October 2003 the legislative scheme of the Act and the matters which are required to be addressed.  The courts essential task on a final hearing is set out in section 13 which provides that this section applies if on the hearing of an application for a division 3 order the Court is satisfied that the prisoner is a serious danger to the community in the absence of a division 3 order.  What represents a serious danger to the community is set out in section 13(2), and that is, if there is an unacceptable risk that prisoners will commit a serious sexual offence if released from custody or released from custody without a supervision order being made. 

There is no dispute in this case that if Mr Pearce were released without a supervision order being made he would be an unacceptable risk to the community.  There is overwhelming evidence of that in each of the psychiatric reports and all of the material before me unequivocally would lead one to reach that conclusion.  However the question remains as to whether a supervised release order should be made.  The respondent's advisors, which includes charitable helpers who have been endeavouring to assist him as well as the Legal Aid Commission who has done a sterling job in this case, and as I have said, his very experienced counsel have endeavoured to find a place, a nursing home placement for Mr Pearce.  That has not been
possible.  One was seriously looked at and might have been
suitable were it not for the fact that it adjoined a primary
school.  Another was assessed in a preliminary way as being
suitable; however, each and every of the psychiatrists was of
the view that it was imperative that the staff of any nursing
home know about Mr Pearce's criminal history so that they
could ensure that he had no unsupervised access to young
people.  It appeared from the report from the nursing home that was suggested that those in charge of it were not intending to disclose that information to the staff.  In that circumstance it was an unsuitable placement.

The difficulty for the Court in trying to make any order for
supervised release is to try and envisage any situation which
would not represent an unacceptable risk to the children in
the community.  As I have said, it is common ground that
nursing home care is needed, and yet it is obvious, and it was
the subject of evidence, that children visit nursing homes and
that is not something that should ever be discouraged.
Children visit in school groups to do concerts for old people
or to befriend them, and children visit in family groups
without necessarily close supervision every moment that they
are there for fear that they might fall victim to a pedophile.

It is particularly important that old people who are in
nursing homes are not denied the company, companionship, love,
care and affection of their extended families.  It has not
been possible for anyone to come up with a place where
Mr Pearce could be in a nursing home and for it to be able to
be ensured that he not have unsupervised access to children,
and when one considers the nature of nursing homes, the
staffing ratios, the qualifications of staff in nursing homes
and the prevalence of visitors, one can see why it has not
been possible to come up with a suitable supervised release
order.

Section 13(4) sets out the matters the Court must have regard
to in deciding whether the prisoner is a serious danger to the
community.  Any evidence must be acceptable and cogent and the
Court must be satisfied to a high degree of probability.  The first thing that the Court must have regard to is the reports prepared by the psychiatrists under section 11.  Those are the reports of Dr Moyle and Dr Lawrence.  I have had regard to those reports.  In addition I have had regard to their oral evidence and the written report of Dr Colls and his oral evidence.  I am satisfied from their evidence that Mr Pearce represents such an unacceptable risk of re-offending that he is a serious danger to the community in the absence of a division 3 order.

The next matter the Court must have regard to is any other
medical psychiatric, psychological or other assessment
relating to the prisoner.  There is other psychological
evidence in this case which again points in the same
direction.  In addition there is the medical evidence by the
physician, Dr John Douglas, whose affidavit was filed and who
also gave oral evidence.  The effect of his evidence, together
with the evidence of the psychiatrists satisfied me that he is
still capable of instigating and maintaining relationships
with other people including children, and his devious manner
means that he would still be capable of grooming children with
a view to establishing a sexual relationship with him.

The third category is information indicating whether or not
there is a propensity on the part of the prisoner to commit
serious sexual offences in future.  There is no doubt that
there is that propensity. 

The fourth is whether or not there is any pattern of offending behaviour on the part of the prisoner.  The pattern of offending behaviour in the case of Mr Pearce is a lifelong pattern of sexually offending against children.

The fifth matter concerns efforts made by the prisoner to address the cause or causes of his offending behaviour including whether or not he has participated in rehabilitation programs is the next matter.  Mr Pearce has not undertaken the sexual offenders' course in prison, but that may be understandable given his physical conditions.

However of more concern is the insight gained from what he
said to Dr Colls who said that, "His risk of re-offending
had been reduced by his adoption of a religious perspective
that prohibited a repeat of his offending behaviour, his lack
of libido and his physical frailty."  The physical frailty, as
I said, was dealt with by Dr Douglas and does not appear,
would not appear to be such as to prevent him from
re-offending.

His religious perspective appears to be that he now believes
homosexuality to be sinful, but, of course, it is his
paedophilia rather than any homosexual tendency that is the
cause of the likelihood of reoffending.

As to his lack of libido, that did not appear in what he told
Dr Moyle, and given his deviousness, I am more inclined to
accept what he told Dr Moyle.  He appears to have had no
insight into his offending behaviour, believing more that
society's view of paedophilia is a social construct rather
than something inherently wrong.

He reported to Dr Colls that he saw his sexual partners as
"commodities".  Dr Colls said,

"He was aware that his behaviour was illegal, but
     continues to assert that this represents a cultural and
     legislative peculiarity, that is activities are
     acceptable elsewhere in the world and that they caused no
     harm to his victims.  He asserts that any claim to the
     contrary is a put up job driven by financial or other

considerations."

That lack of insight underscores the danger that he poses in
the community.

The next matter the Court is required to consider is the
prisoner's antecedents and criminal history.  I have already
dealt with that matter.

The next matter is the risk that the prisoner will commit
another serious sexual offence if released in the community.
That risk, as I have said, is, in my view, unacceptably high.

Mr Hinson for the applicant has helpfully excerpted some of
the matters from the reports of the psychiatrists which amply
demonstrate that.  As he submits, Dr Lawrence's evidence shows
that the risk of the respondent's reoffending sexually if
released from prison is high.  He has a lifelong history of
paedophilia involving both boys and girls.  His offences are
consistent with the DSM 4 diagnosis of paedophilia of both
sexes with some versatility of approach.  He still does not
acknowledge responsibility for his sexual behaviour and has
achieved no change in his lifelong attitudes and sexual
orientation.  He was intent on providing Dr Lawrence with a very sanitised and unreliable account of his sexual offending and she has formed the strong impression that his memory was very conveniently self-serving.  He continued to engage in sexual activity with children after he knew he was HIS positive.  He displayed no empathy for his victims and no evidence of remorse or feelings of guilt about his sexual offending.  Any attempts at remediation in prison have been totally unproductive.  He has a glib, facile approach and is capable of considerable manipulation and while his physical
limitations may moderate the risk of reoffending his age alone
will not necessarily abolish his sexual interest.

Dr Moyle's evidence was that there was a 45 per cent chance of
sexual reoffending within seven years if released without
significant constraints to modify his behaviour.  It was
highly likely that he had an entrenched non-exclusive paedophilia which had existed for over 60 years and was
highly unlikely to have been stopped by going to prison for
eight or nine years.  It was highly unlikely that he had
overcome his sexual interests in children.  He was able to be
glib and manipulating and had a lifetime of practice in
deception.  Again, Dr Moyle remarked that on the respondent
continuing to engage in sexual activities with children after
being diagnosed with the AIDS virus and observed that he was
relatively insightless as to the abnormal nature of his sexual
interests and the potential danger he poses to children and is
resistance to offers of treatment.

The next matter is the need to protect members of the
community from that risk.  It hardly needs to be said, after
all the matters that I have recited, that children should be
protected from the risk of this man offending against them,
given the vulnerability of children and the need of the
community to protect them.

It was urged upon me by Mr Byrne, in submissions that were well expressed, that I should give thought to making a supervision order which cannot be currently acted upon but may be able to be acted upon in the future.  There is, however, as was submitted by Mr Hinson, no utility or justice in making an order that cannot be complied with.  There is no supervised release order which I can make which could be complied with at present, nor can I see any real prospect of any order being capable of being complied with.

Accordingly, I am not inclined to make a supervision order that would, in fact, be a continuing detention order because the conditions of a supervision order would not be able to be complied with.

In the circumstances, I make the order sought in paragraph 2
of the application, that pursuant to section 13(5)(a) that of
the Dangerous Prisoners Sexual (Offenders Act) 2003, that the
respondent, Jesse Spencer Pearce, be detained in custody for
an indefinite term for controlled care and treatment.

-----