Attorney-General (Qld) v Accoom

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SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Accoom [2017] QSC 50

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
STEVEN FRANCIS ACCOOM

(respondent)

FILE NO/S:

SC No 5483 of 2016

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2016; 14 December 2016; 31 January 2017; 31 March 2017; 4 April 2017

JUDGE:

Burns J

ORDER:

The court, being satisfied to the requisite standard that the respondent, Steven Francis Accoom, is a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), orders that the respondent be released from custody and then, until 4 April 2027, be subject to the conditions set forth in the Schedule to this judgment.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY– where there is an application pursuant to s 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 for an order pursuant to Division 3 of Part 2 of that Act – whether the respondent is a serious danger to the community in the absence of a Division 3 order – where the court may order a continuing detention order or a supervision order pursuant to s 13(5) of the Act – whether the adequate protection of the community can be reasonably and practicably managed by a supervision order – whether the requirements under s 16 of the Act can be reasonably and practicably managed by corrective services officers – where the respondent requires immediate integration with mental health services upon release – where the applicant supports a supervision order if suitable accommodation and integration with mental health services can be arranged – whether suitable accommodation and integration with mental health services can be arranged – whether the adequate protection of the community can be reasonably and practicably managed by a supervision order conditioned to provide for suitable accommodation and integration with mental health services

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 2, s 3, s 5, s 13, s 13A, s 16

Attorney-General (Qld) v Beattie [2007] QCA 96, followed
Attorney-General (Qld) v Fardon[2011] QCA 111, cited
Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited
Attorney-General (Qld) v Kanaveilomani[2013] QCA 404, cited
Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, cited
Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305; [2012] QCA 184, cited
Attorney-General (Qld) v Sutherland [2006] QSC 268, followed
Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46, cited
Kynuna v Attorney-General for the State of Queensland[2016] QCA 172, cited
Turnbull v Attorney-General (Qld)[2015] QCA 54, cited

COUNSEL:

J Rolls for the applicant

J Horne for the respondent

SOLICITORS:

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Details
Case
[2017] QSC 50
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (Qld) v Accoom involved the respondent, Steven Francis Accoom, who was an indigenous man born in Woorabinda in Central Queensland. He was 32 years old at the time of the case, and had a history of substance abuse, mental health issues, and involvement in various foster homes, living on the streets, and moving between different towns. The respondent was currently incarcerated at the Townsville Correctional Centre and had a high security classification. The primary issue in this case was whether the respondent represented a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), and if so, whether the adequate protection of the community could be reasonably and practicably managed by a supervision order.

The court found that the respondent was indeed a serious danger to the community in the absence of a Division 3 order, given his unmodified risk of sexually violent reoffending and his past history of substance abuse. The risk that the respondent would commit a serious sexual offence if released from custody or without a supervision order being made was considered unacceptably high. The court also determined that the adequate protection of the community could be reasonably and practicably managed by a supervision order, provided that suitable accommodation and integration with mental health services could be arranged. The applicant supported a supervision order if these conditions were met.

Ultimately, the court ordered that the respondent be released on supervision, conditioned to provide for suitable accommodation and integration with mental health services, for a period of ten years.

Final Orders:
It is ordered that the respondent, Steven Francis Accoom, be released from custody and then, until 4 April 2027, be subject to the conditions set forth in the Schedule to this judgment.

Orders

Orders of the court

The court, being satisfied to the requisite standard that the respondent, Steven Francis Accoom, is a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), orders that the respondent be released from custody and then, until 4 April 2027, be subject to the conditions set forth in the Schedule to this judgment.

Background

Background to the litigation

For the reasons that follow, I am satisfied by acceptable, cogent evidence and to the high degree of probability required by s 13(2) of the Act that the respondent represents a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Act. However, on the basis of the accommodation and treatment arrangements as well as the strict conditions otherwise contained in the agreed draft order, I am satisfied that the adequate protection of the community can be reasonably and practicably managed by a supervision order. As such, it will be ordered that the respondent be released on supervision on those conditions for a period of ten years.Background The respondent is an indigenous man who was born in Woorabinda in Central Queensland. He is 32 years of age. The respondent grew up without his mother and father. During one of the programs he completed whilst in custody, the Sexual Offenders Program for Indigenous Males, he gave a history of having been “given away” when he was a baby to other family members and, from about the age of 14 years, moving in and out of various foster homes, living on the streets and moving between different towns (Rockhampton, Townsville, Mareeba and Cairns). He identified feelings of loneliness, neglect and loss whilst growing up. The respondent began using alcohol and drugs, as well as inhaling paint fumes, in his early teenage years. He stopped attending school at around 14 years of age after he was expelled for fighting. He has very little in the way of employment history; the longest period of employment that he can recall is when he undertook “concrete work and fixing gardens” for about five weeks. Otherwise, he had short stints working at a sawmill and on a farm. The respondent has never been in a serious, long-term relationship. He has one child from a short relationship when he was 16 or 17 years of age, but he has never been involved in the life of that child. As already mentioned, the respondent suffers from chronic schizophrenia. He also has a history of very serious self-harm. It is unclear what, if any, psychiatric treatment he received prior to his present incarceration. Be that as it may, he is now a patient with the Prison Mental Health Service and is complying with the treatment prescribed for him by that Service whilst in custody. This is notwithstanding the feature that he has only limited insight into his illness and, in consequence, is ambivalent about his treatment needs. In addition to his schizophrenia, the respondent also suffers from diabetes and high blood pressure and, in respect of both conditions, is on prescribed medication. On 24 March 2015, the Adult Guardian and the Public Trustee were appointed to manage the respondent’s health, accommodation, service provision and financial affairs. The respondent is currently incarcerated at the Townsville Correctional Centre. He has a high security classification. His behaviour has been generally acceptable although he has been noted at times to have poor hygiene. He has been “breach-free” since July 2008. Up until that time, breaches were a frequent occurrence. Because of his schizophrenia and accompanying need for medication, it has been difficult for the respondent to maintain employment. He usually occupies his time playing cards and watching television.

Evidence

Evidence Before The Court

The correct approach to a consideration of the issues arising under these provisions was explained by McMurdo J (as his Honour then was) in Attorney-General (Qld) v Sutherland[14] as follows:“No order can be made unless the court is satisfied that the prisoner is a serious danger to the community. But if the court is satisfied of that matter, the court may make a continuing detention order, a supervision order or no order.[15] There is no submission here that if the prisoner is a serious danger to the community, nevertheless no order should be made. As already mentioned, it is conceded on behalf of the prisoner that I could be satisfied in terms of s 13(1) and that a supervision order would be appropriate. The court can be satisfied as required under s 13(1) only upon the basis of acceptable, cogent evidence and if satisfied ‘to a high degree of probability that the evidence is of sufficient weight to justify the decision.’ Those requirements are expressed within s 13(3) by reference to the decision which must be made under s 13(1). They are not made expressly referable to the discretionary decision under s 13(5). The paramount consideration under [s 13(6)] is the need to ensure adequate protection of the community. Subsection 13(7) provides that the Attorney‑General has the onus of proving the matter mentioned in s 13(1). There is no express requirement that the Attorney-General prove any matter for the making of a continuing detention order, beyond the proof required by s 13(1). So s 13 does not expressly require, precedent to a continuing detention order, that the Attorney-General prove that a supervision order would still result in the prisoner being a serious danger to the community, in the sense of an unacceptable risk that he would commit a serious sexual offence. However in my view, such a requirement is implicit within s 13. The paramount consideration is the need to ensure adequate protection of the community. But where the Attorney-General seeks a continuing detention order, the Attorney-General must prove that adequate protection of the community can be ensured only by such an order, or in other words, that a supervision order would not suffice. The existence of such an onus in relation to s 13(5) appears from Attorney-General v Francis[16] where the Court allowed an appeal from a judgment which had made a continuing detention order upon the primary judge’s view that the Department of Corrective Services would not provide sufficient resources to provide effective supervision of the prisoner upon his release. The Court found an error in that reasoning because of the absence of evidence that the resources would not be provided.[17] The Court observed:[18] ‘The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principal, be preferred to a continuing detention order on the basis that the intrusions of the act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.’ Thus the absence of evidence of the inadequacy of resources was important because that matter had to be proved, as a step in persuading the court that only continuing detention would suffice. The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order. As was also observed in Francis, a supervision order need not be risk free, for otherwise such orders would never be made.[19] What must be proved is that the community cannot be adequately protected by a supervision order. Adequate protection is a relative concept. It involves the same notion which is within the expression ‘unacceptable risk’ within s 13(2). In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community. The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk. They differ in their descriptions of the extent of that risk. But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”[20][14][2006] QSC 268.[15]Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 at [19], [34]; cf in relation to s 30 Attorney‑General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324 at [31].[16][2007] 1 Qd R 396; [2006] QCA 324.[17]Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324 at [37].[18]Ibid [39].[19]Ibid. [20][2006] QSC 268 at [26]-[30]. See also Attorney-General for the State of Queensland v Kanaveilomani [2013] QCA 404 at [118]-[120] per Morrison JA; Turnbull v Attorney-General (Qld) [2015] QCA 54 at [36]-[37] per Morrison JA.The evidence

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As counsel for the applicant submitted in writing:“The general tenor of Dr Reilly’s evidence is that the respondent is able to be released from custody and has accommodation available to him which will satisfy his treatment needs and also provide a means by which Corrective Services can, additionally, supervise the respondent to manage the sexual risk that the respondent’s release otherwise presents.Accordingly, it would appear that the proposal of the Townsville Hospital Health Service to provide alternative accommodation, is of the type contemplated by the psychiatric reports of Drs Beech and Grant, and would seem also to meet the clinical requirements that the respondent has as postulated by Dr Simpson.”ConsiderationIs the respondent a serious danger to the community in the absence of an order? It was not in issue on the hearing of the application that the respondent is a serious danger to the community in the absence of a Division 3 order. Nevertheless, it is still necessary for the court to consider that question. Here, the psychiatrists all agree that the respondent’s main problems are his substance abuse and mental health conditions. His unmodified risk of sexually violent reoffending has been assessed by the three reviewing psychiatrists – Dr Harden, Dr Beech and Dr Grant – as being high. The victim of such an offence is likely to be an adolescent or adult female and there is a significant risk of psychological and/or physical harm to the victim. In this context, it is with respect useful to recall what was said by Keane JA (as his Honour then was) in Attorney-General (Qld) v Beattie,[23] that “whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising”.[24] As such, even if the risk that the respondent might reoffend in a sexually violent way is only at a moderate level, there remains a high risk of very serious harm being caused to a future victim if he lapses back into substance abuse or noncompliance with psychiatric treatment. Given the index offending, his past history of substance abuse and his poor insight into his mental illness, the risk that the respondent will commit a serious sexual offence within the meaning of the Act if he is released from custody or, alternatively, released from custody without a supervision order being made is unacceptably high. The applicant has established this by acceptable cogent evidence and to the high degree of probability required under the Act.[23][2007] QCA 96.[24]Ibid [19]. It follows that the respondent is a person to whom the Act applies.Which order? The court being satisfied that the respondent is a person to whom the Act applies, the next question is whether, under s 13(5) of the Act, there should be a continuing detention order or a supervision order. Section 13(6) provides:“(6)In deciding whether to make an order under subsection (5)(a) or (b) –(a)the paramount consideration is to be the need to ensure adequate protection of the community; and(b)the court must consider whether –(i)adequate protection of the community can be reasonably and practicably managed by a supervision order; and(ii)requirements under section 16 can be reasonably and practicably managed by corrective services officers.”