Attorney-General (Qld) v Corben - [2018] QSC 264

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Corben [2018] QSC 264

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
MARK JOHN CORBEN

(respondent)

FILE NO:

No 7785 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2018

JUDGE:

Davis J

ORDER:

I order the respondent be released from custody subject to the requirements set out in the Schedule to these reasons for a period of 10 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 applicant has applied for a Division 3 – where the respondent is serving a sentence for multiple sexual offences committed against a child – where the respondent concedes that the Court would be satisfied he is a serious danger to the community in the absence of a Division 3 order – whether a Division 3 order should be made – whether adequate protection of the community can be managed by a supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 3, s 5, s 8, s 11, s 12, s 13, s 16

A-G (Qld) v Beattie [2007] QCA 96, cited
A-G (Qld) v Lawrence [2011] QCA 347, cited
Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, cited
Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited

Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, cited

COUNSEL:

J Tate for the applicant

C Reid for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

The respondent is presently in custody serving sentences for various sexual offences committed against a 4 year-old child and an offence of possessing child exploitation material. The respondent’s full time release date is 21 November 2018. The Attorney-General has applied for orders against the respondent under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act).
Statutory scheme
Section 3 of the Act prescribes the objects of the legislation as follows:
“3 Objects of this Act
The objects of this Act are—
(a)to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and
(b)to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”
The objects of the Act are fulfilled by a scheme providing for the detention of prisoners beyond the expiry of their sentences or alternatively their release upon supervision.
By s 5, the Attorney-General may apply for both an order under s 8 of the Act and also an order under Division 3 of Part 2. Division 3 of Part 2 provides for final orders. Applications can only be brought under s 5 against a “prisoner”.
Section 5, which authorises the application for orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General (Qld) v Corben

Details

AGLC: Attorney-General (Qld) v Corben [2018] QSC 264
Case: [2018] QSC 264
Decision Date: 16 November 2018

CaseChat Overview and Summary

The matter of Attorney-General (Qld) v Corben came before the Queensland Court of Appeal, where the respondent, serving a sentence for multiple sexual offences against a child, applied for a Division 3 order under the Sentencing Act 1992. The central issue was whether the respondent, who conceded he would be considered a serious danger to the community without such an order, was suitable for a supervision order instead. The court was required to determine the appropriate measures for adequate community protection, weighing the risk assessments provided by three psychiatrists against the potential effectiveness of a supervision order.

The court examined the psychiatric evidence, which highlighted the respondent's diagnosis of paedophilia, personality disorders, and other mental health conditions. The psychiatrists assessed the risk of sexual re-offending as moderate to high, particularly concerning child exploitation material. The court considered the statutory provisions governing the preparation and use of psychiatric reports in such applications. Section 8 of the Act allows for psychiatric examinations and reports, which are crucial for applications under section 13. Sections 11 and 12 detail the preparation and distribution of these reports, while section 16 outlines the requirements for supervision orders.

In its reasoning, the court balanced the severity of the respondent’s offences and the risk assessments against the potential effectiveness of a supervision order. The court concluded that while the risk of re-offending was significant, the respondent's specific circumstances, including his compliance and the support available under a supervision order, made it appropriate to release him under strict conditions. The court ordered the respondent's release from custody, subject to a supervision order with specific requirements to ensure community protection and the respondent's rehabilitation.

Orders

Orders of the court

I order the respondent be released from custody subject to the requirements set out in the Schedule to these reasons for a period of 10 years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 7 August 2018, the Court heard the preliminary hearing pursuant to s 8 of the Act and orders were made:1.appointing Dr Kenneth Arthur and Dr Evelyn Timmins, both consultant psychiatrists, to prepare risk assessments concerning the respondent for the purposes of the application for final orders under s 13 of the Act; and 2.setting 12 November 2018 as the hearing date for the application for final orders.The psychiatric evidence The psychiatric evidence before me came from Dr Grant, Dr Arthur and Dr Timmins. The respondent did not file or read material. Dr Grant diagnosed the respondent as suffering from:(i)Paedophilia (heterosexual type with attraction to latency-aged females aged between four and eight);(ii)Personality Disorder (with Anxious, Avoidant and some Schizoid traits); (iii)Anxiety Disorder (with a history of Panic Attacks); and(iv)Past periods of Depression (largely in remission on medication). Dr Arthur diagnosed the respondent as suffering from:(i)Paedophilic Disorder (likely exclusive, sexually attracted to females aged 4 to 8 years);(ii)Features of Fetishistic Disorder (involving female children’s underwear);(iii)Mixed Cluster B and C Personality Disorder with features of Narcissism (grandiose sense of self-importance/arrogant haughty behaviours and attitudes/sense of entitlement) and Avoidance (avoids interpersonal contact, preoccupied with being criticised or rejected in social situations, views self as socially inept): and(iv)Anxiety Disorder (features of social anxiety and panic). Dr Timmins diagnosed the respondent as suffering from:(i)Paedophilia, exclusive, pre-pubescent females;(ii)Mixed Personality Disorder (with Antisocial, Narcissistic and Avoidant personality traits); and(iii)Substance Use Disorder (mainly Alcohol, in sustained remission in custody). Each of the three psychiatrists utilised the risk assessment tools Static 99-R, the Hare Psychopathy checklist and the Risk of Sexual Violence Protocol. It is unnecessary to record the various scores achieved by application of those tools. The psychiatrists, relying upon the results of the application of those tools, clinical assessments and consideration of other materials each provided a detailed opinion on the question of risk. Dr Grant opined:“Overall, taking everything into consideration, I would see the risk of sexual re-offending falling in to two categories. In terms of the risk for accessing child exploitation material the risk would in my opinion be moderate to high. In terms of the risk for hands-on sexual offending against young females, I consider that the risk would be moderate (average). That risk does not involve any psychopathic personality traits. Future offending would be associated with his strong paedophilic urges, exacerbated by life stressors and depression. The static risk assessment on instruments is no more than average/moderate, but in my opinion the presence of his strong paedophilic urges and other personality factors render the risk for hands-on sexual offending as being at least moderate and moderate-to-high for accessing CEM.”[7][7] Affidavit of Dr Grant, sworn 18 June 2018, CFI 8, exhibit DAG-2 at 36.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Orders which can be made under s 8 include orders that a prisoner undergo psychiatric examination. The evidence so obtained is then relied upon by the Attorney-General on the application brought under s 13. Relevant to examinations ordered under s 8, are ss 11 and 12 which are in these terms:“11 Preparation of psychiatric report(1)Each psychiatrist examining the prisoner must prepare a report under this section.(2)The report must indicate—(a)the psychiatrist’s assessment of the level of risk that the prisoner will commit another serious sexual offence—(i)if released from custody; or(ii)if released from custody without a supervision order being made; and(b)the reasons for the psychiatrist’s assessment.(3)For the purposes of preparing the report, the chief executive must give each psychiatrist any medical, psychiatric, prison or other relevant report or information in relation to the prisoner in the chief executive’s possession or to which the chief executive has, or may be given, access.(4)A person in possession of a report or information mentioned in subsection (3) must give a copy of the report or the information to the chief executive if asked by the chief executive.(5)Subsection (4) authorises and requires the person to give the report or information despite any other law to the contrary or any duty of confidentiality attaching to the report.(6)If a person required to give a report or information under subsection (4) refuses to give the report or information, the chief executive may apply to the court for an order requiring the person to give the report or information to the chief executive.(7)A person giving a report or information under subsection (4) or (6) is not liable, civilly, criminally or under an administrative process, for giving the report or information.(8)Each psychiatrist must have regard to each report or the information given to the psychiatrists under subsection (3).(9)Each psychiatrist must prepare a report even if the prisoner does not cooperate; or does not cooperate fully, in the examination.12 Psychiatric reports to be given to the Attorney-General and the prisoner(1)Each psychiatrist must give a copy of the psychiatrist’s report to the Attorney-General within 7 days after finalising the report.(2)The Attorney-General must give a copy of each report to the prisoner on the next business day after the Attorney-General receives the report.” Section 16 deals with the content of supervision orders. [3] Section 16 provides as follows:[3] As do ss 16A–16D, to which it is not necessary to specifically refer.“16 Requirements for orders(1) If the court or a relevant appeal court orders that a prisoner’s release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner—(a) report to a corrective services officer at the place, and within the time, stated in the order and advise the officer of the prisoner’s current name and address; and (b) report to, and receive visits from, a corrective services officer as directed by the court or a relevant appeal court; and (c) notify a corrective services officer of every change of the prisoner’s name, place of residence or employment at least 2 business days before the change happens; and (d) be under the supervision of a corrective services officer; and (da) comply with a curfew direction or monitoring direction; and (daa) comply with any reasonable direction under section 16B given to the prisoner; and (db) comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order; andExamples of direct inconsistency—If the only requirement under subsection (2) contained in a particular order is that the released prisoner must live at least 1km from any school— 1 A proposed direction to the prisoner would be directly inconsistent if it requires the released prisoner to live at least 2km from any school. 2 A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner to live at least a stated distance from something else, including, for example, children’s playgrounds, public parks, education and care service premises or QEC service premises. 3 A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner not to live anywhere unless that place has been approved by a corrective services officer.(e) not leave or stay out of Queensland without the permission of a corrective services officer; and (f)not commit an offence of a sexual nature during the period of the order.(2) The order may contain any other requirement the court or a relevant appeal court considers appropriate—(a) to ensure adequate protection of the community; orExamples for paragraph (a)—• a requirement that the prisoner must not knowingly reside with a convicted sexual offender • a requirement that the prisoner must not, without reasonable excuse, be within 200m of a school • a requirement that the prisoner must wear a device for monitoring the prisoner’s location(b) for the prisoner’s rehabilitation or care or treatment.”History

CITATION:	Attorney-General (Qld) v Corben [2018] QSC 264
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v MARK JOHN CORBEN (respondent)
FILE NO:	No 7785 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	16 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2018
JUDGE:	Davis J
ORDER:	I order the respondent be released from custody subject to the requirements set out in the Schedule to these reasons for a period of 10 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 applicant has applied for a Division 3 – where the respondent is serving a sentence for multiple sexual offences committed against a child – where the respondent concedes that the Court would be satisfied he is a serious danger to the community in the absence of a Division 3 order – whether a Division 3 order should be made – whether adequate protection of the community can be managed by a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 3, s 5, s 8, s 11, s 12, s 13, s 16 A-G (Qld) v Beattie [2007] QCA 96, cited A-G (Qld) v Lawrence [2011] QCA 347, cited Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, cited Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, cited
COUNSEL:	J Tate for the applicant C Reid for the respondent
SOLICITORS:	G R Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent