Attorney-General (Qld) v Brown

Case [2021] QSC 142

SUPREME COURT OF QUEENSLAND

CITATION:

 Attorney-General (Qld) v Brown [2021] QSC 142

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

Troy Jimmy Charles Brown

(respondent)

FILE NO/S:

BS 422 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2021

JUDGE:

Brown J

ORDER:

The Court affirms the decision of Martin J made on 16 June 2009 that the respondent, is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:

1. Pursuant to s 30(5) of the Act, the continuing detention order made on 1 April 2020 be rescinded; and

2.   The respondent be released from custody and from that time be subject to the requirements contained in the draft Supervision Order for a period of ten years.

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 respondent is detained under a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where applicant applied for a review of the order under s 27 of the Act and orders that the respondent continue to be subject to a continuing detention order pursuant to s 30(3)(a) of the Act after the respondent contravened the supervision order –– whether respondent serious danger to community in absence of Division 3 order – whether adequate protection of community can be reasonably and practically managed by supervision order – whether s 16 requirements can be reasonably and practically managed by corrective services officers

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 16, s 27, s 30

Attorney-General for the State of Queensland v Allen [2019] QSC 56, cited

Attorney-General for the State of Queensland v Fardon [2011] QCA 155, cited

Attorney-General (Qld) v Brown [2019] QSC 73, cited

Attorney-General (Qld) v Brown [2020] QSC 57, cited

Attorney-General (Qld) v DBJ [2017] QSC 302, cited

Attorney-General (Qld) v Fardon [2011] QCA 111, cited

Attorney-General (Qld) v Francis [2007] 1 Qd R 396, cited

Attorney-General (Qld) v Lawrence [2009] QCA 136, cited

Attorney-General (Qld) v S [2015] QSC 157, cited

Attorney General v KAH [2019] QSC 36, cited

Turnbull v Attorney-General (Qld) [2015] QCA 54, cited

COUNSEL:

J Rolls for the applicant

C Reid for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

  1. This is an application pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act)[1] for review of the continuing detention of Troy Jimmy Charles Brown, the respondent.[2] The Attorney-General for the State of Queensland (the applicant) seeks to have a decision of Martin J made on 16 June 2009 affirmed, being that Troy Jimmy Charles Brown (the…

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Attorney-General (Qld) v Brown [2021] QSC 142
Case
[2021] QSC 142
Decision Date

CaseChat Overview and Summary

The parties to the case are the Attorney-General for Queensland and Troy Jimmy Charles Brown, the respondent. The dispute involves the respondent's detention under a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The applicant sought a review of the order under section 27 of the Act and orders that the respondent continue to be subject to a continuing detention order pursuant to section 30(3)(a) of the Act after the respondent contravened the supervision order. The court was required to decide whether the respondent is a serious danger to the community in the absence of a Division 3 order, whether adequate protection of the community can reasonably and practicably be managed by a supervision order, and whether the requirements of section 16 of the Act can reasonably and practicably be managed by Queensland Corrective Services.

The court found that the respondent is a serious danger to the community in the absence of a Division 3 order, given the evidence of his criminal history, psychiatric conditions, and participation with psychologists and programs. The court also found that the adequate protection of the community can reasonably and practicably be managed by a supervision order, and that the requirements of section 16 of the Act can reasonably and practicably be managed by Queensland Corrective Services. The court affirmed the decision of Martin J made on 16 June 2009 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and ordered that the continuing detention order made on 1 April 2020 be rescinded and that the respondent be released from custody and from that time be subject to the requirements contained in the draft Supervision Order for a period of ten years.

Orders

Orders of the court

The Court affirms the decision of Martin J made on 16 June 2009 that the respondent, is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:

1. Pursuant to s 30(5) of the Act, the continuing detention order made on 1 April 2020 be rescinded; and

2. The respondent be released from custody and from that time be subject to the requirements contained in the draft Supervision Order for a period of ten years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In Attorney-General (Qld) v S,[14] the Court stated that, in determining whether the community could be adequately protected only by a continuing detention order, the Court is required to consider “…the nature and extent of risk, as well as the potential consequences of that risk eventuating, in order to assess whether the risk is acceptable, in the sense of providing adequate protection to the community.”[15] [14][2015] QSC 157.[15][2015] QSC 157 at [40].Psychiatric evidence A psychiatric assessment was made by both Dr Aboud and Dr Sundin for the purposes of this hearing. Both doctors had seen Mr Brown and assessed him on previous occasions.Dr Aboud Dr Aboud had previously prepared reports in 2017 and 2020. He considered that the respondent had the following psychiatric conditions: ·alcohol dependency; ·cannabis dependence; ·other substance abuse (solvents, opiates, possible stimulants); ·mixed personality disorder with predominantly antisocial paranoid and borderline traits; ·psychopathic features; and ·below average intellectual function being a threshold for borderline mental retardation. Dr Aboud did not find the respondent met the diagnostic criteria for a diagnosis of paraphilia. He considered that Mr Brown did not present with any mental illnesses, although he noted the possibility that his use of illicit substances may have impacted his mood so that he became elevated, which may also contribute to increased sexual preoccupation. Dr Aboud used a number of risk assessment tools to assess the respondent’s risk of reoffending relevantly to his being a risk under the Act. The Respondent was above the cut off for a diagnosis of psychopathy to be made. In assessing the respondent by reference to the sexual violence protocol, Dr Aboud considered that if the respondent was to re-offend, it would take the form of opportunistic sexual violence, possibly in the course of committing a property related offence. Alcohol and illicit substances such as cannabis may be involved which would lead to disinhibition and reduced behavioural control, accompanied by mood elevation associated with sexual preoccupation. However, Dr Aboud noted the possibility that offending might occur without any substances being involved where labile emotional states might be channelled into offending. Such offending is likely to be impulsive. Dr Aboud considered Mr Brown would be at a higher risk if bored, angry, despondent, stressed or highly sexually preoccupied. Dr Aboud found that the respondent’s sexual offending risk was high, on the basis of the static instruments used. He found that the dynamic risk factors have remained “somewhat intractable to change due to his psychopathic personality structure, limited intellect and negative attitude.” He found therapies have provided limited assistance in moderating the risks. Dr Aboud noted that the respondent has demonstrated reasonable behaviour in prison and successfully completed the Medium Intensity Substance Intervention Program.

Decision

Reasons for decision

There is no contest between the parties that the supervision order should be for ten years. That is supported by the opinions of both psychiatrists, which I accept as the period needed for him to mature and receive support before he will be an acceptable risk in the community without supervision, given his chronic risk vulnerabilities and having regard to his criminal history.[19][19]Which is the relevant test for determining the period of a supervision order: Attorney General v KAH [2019] QSC 36 at [69].Conclusion Given the above analysis, the orders that should be made by this Court are that: The Court affirms the decision of Martin J made on 16 June 2009 that the respondent, Troy Jimmy Charles Brown is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:1.Pursuant to s 30(5) of the Act, the continuing detention order made on 1 April 2020 should be rescinded; and2.The respondent should be released from custody and from that time be subject to the requirements contained in the draft Supervision Order for a period of ten years. I will therefore make the Order in accordance with the draft provided.

Ratio Decidendi

Legal Principle Established

Ms Monson of Corrective Services has confirmed that treatment from a psychologist will be provided to Mr Brown upon his release, and there is a vacancy in Townsville’s contingency accommodation. She has also identified other community support services that will be available to Mr Brown if he wishes to take advantage of them. Mr Denaro has confirmed that the Sexual Offenders Maintenance Program will be available to Mr Brown at the Townsville community corrections office when it is taking place, but the details of which have not yet been finalised. ConsiderationIs the respondent a serious danger to the community in the absence of a Division 3 Order? The first question is whether the Court should affirm the finding made on 16 June 2019 that the respondent is a serious danger to the community in the absence of a Division 3 order under the Act. As set out above, the respondent concedes that the evidence supports a finding that he is a serious danger to the community in the absence of a Division 3 order and that the order of Martin J made on 16 June 2009 should be affirmed. Given the evidence before me, particularly the psychiatrists’ assessment of the respondent’s unmodified risk, which I accept, that concession is properly made. I am satisfied to a high degree of probability that there is acceptable cogent evidence that has been presented to me, that is of sufficient weight, to conclude that the respondent continues to be a serious danger to the community in the absence of a Division 3 order under the Act. I have reached that conclusion having regard to the matters identified under s 13(4) of the Act, including in relation to the respondent’s criminal history, psychiatric conditions, participation with psychologists and programs, the relevant risks identified particularly by the psychiatrists and arising from his previous offending and the need to protect members of the public from that risk. It is evident that the respondent has previously had psychological treatment which he engaged in but was lacking motivation to develop strategies to change, but where there are now signs there is a greater willingness to take positive steps to change and some insight into his offending and the relevant triggers to the risk of reoffending. I am therefore satisfied that the applicant has discharged the onus upon her and that the Court should affirm the decision of Martin J that the respondent is a serious danger to the community in the absence of a Division 3 order. Should the respondent be released on a supervision order? The applicant carries the onus to persuade the Court in that regard.[16] As provided under s 30(4) of the Act, the paramount consideration is the need to ensure adequate protection of the community. The Court must consider whether the adequate protection of the community can reasonably and practicably be managed by a supervision order and whether the requirements of s 16 of the Act can be reasonably and practicably managed by Queensland Corrective Services (QCS). There is no evidence suggesting that QCS cannot reasonably and practicably manage the requirements under s 16 of the Act in this instance. [16]Attorney-General (Qld) v Lawrence [2009] QCA 136; Attorney-General (Qld) v Francis [2007] 1 Qd R 396.