Attorney-General (Qld) v Cooney

Case [2018] QSC 290

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Cooney [2018] QSC 290

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
PETER RAYMOND COONEY

(respondent)

FILE NO:

No 6776 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

7 December 2018

Orders made 13 November 2018  

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2018

JUDGE:

Davis J

ORDER:

Orders made 13 November 2018:

THE COURT being satisfied to the requisite standard that the respondent, Peter Raymond Cooney, has contravened requirements 7, 38 and 40 of the supervision order made on 27 November 2017, ORDERS THAT, pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003:

1.   That requirement 38 of the supervision order made on 27 November 2017 be amended as follows:-

38.    obtain the prior written approval of a Corrective Services officer before accessing a computer or the internet or internet capable device;

2.   The respondent be released from custody and be subject to the supervision order made on 27 November 2017, as amended.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where a supervision order was made with respect to the respondent under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where it was alleged that the respondent had contravened a requirement of the supervision order – where a warrant was issued for the arrest of the respondent pursuant to the Act and the respondent was detained in custody – where the applicant sought orders with respect to the respondent under s 22 of the Act – where the contravention was admitted by the respondent – where the applicant had not committed any further serious sexual offences – whether the adequate protection of the community could, despite the contravention of the order, be ensured by the existing supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 3, s 5, s 13, s 22

Attorney-General for the State of Queensland v Cooney [2017] QSC 291, related

Attorney-General for the State of Queensland v Ellis [2012] QCA 182, cited

Attorney-General (Qld) v Fardon [2013] QCA 64, cited

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

Attorney-General v Lawrence [2010] 1 Qd R 505, cited

Attorney-General (Qld) v Yeo [2008] QCA 115, cited

Fardon v Attorney-General (Qld) (2004) 223 CLR 575, cited

Kynuna v Attorney-General (Qld) [2016] QCA 172, cited

LAB vAttorney-General [2011] QCA 230, cited

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

COUNSEL:

J Tate for the applicant
C M A O’Connor for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the applicant

Andersen Fredericks Turner Lawyers for the respondent

  1. The Attorney-General sought orders under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) consequent upon a breach by the respondent of a supervision order made by Atkinson J on 27 November…

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AGLC
Attorney-General (Qld) v Cooney [2018] QSC 290
Case
[2018] QSC 290
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (Qld) v Cooney involved a challenge by the Attorney-General of Queensland to a decision of the Queensland Court of Appeal that had reduced the supervision order imposed on the respondent, Peter Raymond Cooney, a convicted dangerous sexual offender. The court was asked to determine whether the adequate protection of the community could be ensured by the existing supervision order, despite the respondent's contravention of certain requirements. The respondent had a history of unlawful stalking and had breached his supervision order by using his mobile phone to access the Internet without permission.

The central legal issue before the court was whether the contravention of the supervision order by the respondent posed an unacceptable risk of him committing a serious sexual offence, despite his admission of the contravention and the absence of any further serious sexual offences committed by him. This issue was determined by assessing the psychiatric evidence provided by Dr Timmins and Dr Harden, who had evaluated the respondent's risk of sexual reoffending. The court considered the diagnoses of paedophilia, personality disorder, polysubstance abuse, and likely borderline intellectual impairment, as well as the high risk of sexual reoffending identified by the psychiatrists.

The court concluded that the adequate protection of the community could be ensured by the existing supervision order, despite the contravention by the respondent. The court found that the respondent's risk of sexual reoffending was high, and that the supervision order, while not effectively controlling the particular issue of internet use, was likely to limit his offending behaviour. The court modified requirement 38 of the supervision order to require the respondent to obtain prior written approval from a Corrective Services officer before accessing a computer or the internet or internet-capable device. The court ordered the respondent's release from custody and his continued subjection to the supervision order, as amended.

The final orders of the court included the amendment of requirement 38 of the supervision order to require prior written approval from a Corrective Services officer before accessing a computer or the internet or internet-capable device, and the release of the respondent from custody and his continued subjection to the supervision order, as amended. These orders ensured that the adequate protection of the community was maintained, while also taking into account the respondent's contravention of the supervision order and the psychiatric evidence provided regarding his risk of sexual reoffending.

Orders

Orders of the court

Orders made 13 November 2018:

THE COURT being satisfied to the requisite standard that the respondent, Peter Raymond Cooney, has contravened requirements 7, 38 and 40 of the supervision order made on 27 November 2017, ORDERS THAT, pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003:

1. That requirement 38 of the supervision order made on 27 November 2017 be amended as follows:-

38. obtain the prior written approval of a Corrective Services officer before accessing a computer or the internet or internet capable device;

2. The respondent be released from custody and be subject to the supervision order made on 27 November 2017, as amended.

Background

Background to the litigation

The issue under s 22 of the Act is not whether there is an unacceptable risk that the respondent will breach the supervision order. The issue is whether there is an unacceptable risk that he will commit a serious sexual offence.[17][17] Attorney-General (Qld) v Francis [2012] QSC 275 at [64]-[67]. Background to the present application The respondent was born on 9 April 1978. He is currently 40 years of age. The respondent has a long criminal history dating back to 1996. In December 1996, he was convicted in the Rockhampton Magistrates Court of wilful damage and arson. He was placed on probation for three years and sentenced to six months’ imprisonment, wholly suspended for 12 months. In December 1999, the respondent was convicted of a Commonwealth offence of using the postal service to menace, harass or cause offence and was placed on a recognizance to be of good behaviour for 12 months. The respondent has been convicted of many offences of unlawful stalking. His first conviction occurred in the Brisbane District Court on 16 May 2003. That offence consisted of the respondent sending letters to a man to the effect that he, the respondent, had molested the man’s son and demanding that the man allow the respondent to molest his son again. He was convicted and placed on probation for 3 years together with some community service. Apart from a conviction in the Rockhampton Magistrates Court on 8 March 2010 under the Summary Offences Act 2005 (Qld) for trespass, the respondent had no further convictions until 25 May 2011. In the Rockhampton Magistrates Court on 25 May 2011, the respondent was convicted of one charge of unlawful stalking, two charges of breach of bail and a Commonwealth offence of using a carriage service to menace, harass or cause offence. Over the period of the offending, the respondent was being cared for by a male employee of a care and respite centre. The respondent stalked the carer’s wife. He was placed on probation in relation to the stalking and bail offences and placed on a recognizance in relation to the Commonwealth offence. On 14 July 2011, the respondent was convicted of further offences including offences of stalking. The complainants were the male carer and the carer’s wife. The respondent spent some time in custody before being dealt with. He was sentenced to various terms of imprisonment and a parole release date of 14 September 2011 was fixed. Taking into account the time served, the respondent served a period of about 3 months imprisonment. On 22 November 2011, the respondent was again convicted of various offences including three charges of stalking. The complainant on one of the charges was the male carer who had been the complainant in the earlier offences. The second complainant was a man who the respondent had met in prison. The respondent asserted that he had a sexual relationship with that man. The third respondent was a former sexual partner of the man with whom the respondent asserted he had a sexual relationship. The respondent was sentenced to a term of imprisonment of two years with a parole eligibility date of 22 March 2013.

Evidence

Evidence Before The Court

In the course of the current breach proceedings, the respondent was examined by psychiatrists, Dr Timmins and Dr Harden. They were two of the three psychiatrists who gave evidence at the hearing before Atkinson J which resulted in the supervision order being made, the other being Dr Arthur. For the present proceedings, Dr Timmins and Dr Harden produced risk assessment reports.The psychiatric evidence In a written report Dr Timmins confirmed the diagnoses recorded in her earlier report, namely: ·Paedophilia (sexually attracted to males, non-exclusive type);·Personality Disorder, Not Otherwise Specified (dependant, borderline and anti-social traits);·Polysubstance Abuse (in sustained remission in a controlled environment); and ·Likely borderline intellectual impairment. On the question of risk Dr Timmins said:“In summary, I am of the opinion that Mr Cooney’s risk of sexual reoffending is HIGH if released into the community without a supervision order in place.He was released to community under a Supervision order in December 2017.He has breached his supervision order very quickly after release with use of his mobile phone to access the Internet. He appears to have hidden the use of his mobile phone from Corrective services for the three months he was in the community. This behaviour has led to him breaching his Supervision order.The community Supervision order did not effectively assist to control that particular issue.Fortunately, before further sexual or violent offences were committed Mr Cooney was placed back in custody due to breaching his order. He also did not return to illicit substance or alcohol use.If he does offend it is likely to be against a person with whom he has a relationship with [sic] but Mr Cooney perceives the relationship to be more than it actually is in reality. He will then perceive rejection and revert to revenge behaviours, involving acquaintances of the person by contacting them in a threatening manner. These contacts may or may not involve children.Alternatively, he may engage in contact offending against young boys.There is a risk of psychological coercion involved in the offending and the potential for Mr Cooney to inflict a high degree of harm to the victim, including physical harm.”[22]And later:“His risk may be modified by a community supervision order under the Dangerous Prisoner (Sex Offender) Act 2003. He would most likely fall into a MODERATE to HIGH risk category.If released back into the community at this time the order is likely to continue with the reduction of his risk to moderate to high and will serve to limit his offending behaviour but it is likely he will continue along the same pattern of behaviour and thus breach his order.”[23]”[22] Affidavit of Dr Evelyn Timmins, filed 24 October 2018, ex ET-2 at 38–9.[23] At 39. Dr Harden in his report opined as follows:“At the time of assessment Peter COONEY was a 40-year-old man who had been convicted of an index cluster of sexual and other offences and then following release on a supervision order has breached that order by making online threats to sexually assault the four-year-old daughter of a man who he thought he was in a romantic relationship with. He has done this following the breakdown of the “relationship” and in the context of interpersonal conflict with the man.This pattern of behaviour was consistent with his long-standing personality disorder and inability to tolerate perceived rejection that [sic] resorting to dysfunctional patterns of behaviour…Significant psychosexual disturbance appears to be present, he describes adult homosexual orientation, but persistently makes threats of a paedophilic nature, has previously “confessed” to paedophilic offending that was unsubstantiated and has now touched a prepubertal male child. His sexual and emotional relationships have been characterised by their brevity and emotional tumult. His consistent response over the years to feeling upset or slighted by others is to seek vengeance by means of stalking or other malevolent behaviour which has taken the form of making sexual threats to their children or directly to the victim. He escalated from this to touching an eight-year-old male on the genital area in a public toilet after following the child into the toilet.Despite being subject to recurrent sanctions such as court appearances, community orders, incarceration and similar he has persisted in the stalking type behaviour and general harassment of others. There is a concerning pattern of escalation.He has few strengths and has coped poorly with being on a supervision order in terms of cooperating with supervising authorities because of his generally deceptive behaviour with regard to his online presence resulting in the social media messages threatening to sexually assault a four-year-old girl.”[24][24] Affidavit of Dr Scott Harden, filed 29 October 2018, ex SH-2 at 19-20.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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