Attorney-General (Qld) v FLM

Case [2021] QSC 194

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v FLM [2021] QSC 194

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
FLM
(respondent)

FILE NO/S:

BS No 9429 of 2013

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

10 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2021

JUDGE:

Williams J

ORDER:

The order of the Court is that:

1.       The Interim Detention Order made on 24 January 2020 is rescinded.

2.       The Supervision Order made on 2 November 2015 is rescinded.

3.       The respondent be detained in custody for an indefinite term for control, care and treatment under the DPSO Act.

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 was released to the community under a supervision order in November 2015 – where the supervision order was for a period of 10 years – where the respondent was alleged to have contravened the supervision order – where the respondent was detained under an interim detention order pending hearing of the contravention application – where the respondent does not contest a finding that the respondent has contravened the supervision order – where the respondent contends that the adequate protection of the community can, despite the contraventions, be ensured by the making of an amended supervision order – where the applicant contends that the evidence supports a continuing detention order and that the respondent has not discharged the onus on him such that the Court could be satisfied that the adequate protection of the community could be achieved by a return to the current supervision order or an amended supervision order – where the applicant seeks orders under section 22 of Part 2, Division 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO) – whether a supervision order, despite the contravention, ensures the adequate protection of the community

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 16, s 21, s 22

Attorney-General (Qld) v Beattie [2007] QCA 96, cited
Attorney-General for the State of Queensland v DBJ [2017] QSC 302, considered
Attorney-General for the State of Queensland v F [2015] QSC 316, considered
Attorney-General for the State of Queensland v Fardon[2011] QCA 111, cited
Attorney-General for the State of Queensland v McKellar [2019] QSC 92, considered
Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited

COUNSEL:

J Tate for the applicant
T A Ryan for the respondent

SOLICITORS:

Crown Law for the applicant
Cridland & Hua Lawyers for the respondent

  1. This is an application by the Attorney-General for the State of Queensland, the applicant, seeking orders under s 22 of Part 2, Division 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act), in relation to the respondent.

  2. The respondent was brought before the Supreme Court of Queensland on 24 January 2020 following alleged contravention offending…

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Details
AGLC
Attorney-General (Qld) v FLM [2021] QSC 194
Case
[2021] QSC 194
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (Qld) v FLM involves a respondent who was convicted of sexual offences and was released to the community under a supervision order in November 2015, with a duration of 10 years. The respondent was alleged to have contravened the supervision order, leading to a hearing concerning whether a Continuing Detention Order or an amended Supervision Order was required to ensure the adequate protection of the community. The application was made under section 22 of Part 2, Division 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO).

The central legal issue was whether the adequate protection of the community could be ensured by a Supervision Order, despite the respondent's contravention, or if a Continuing Detention Order was necessary. The respondent argued that an amended Supervision Order could provide adequate protection, while the applicant contended that the evidence supported a Continuing Detention Order and that the respondent had not discharged the onus to show that community protection could be achieved through an amended Supervision Order.

The Court considered the psychiatric evidence and expert opinion regarding the respondent's risk of re-offending. Dr Josephine Sundin, a consultant psychiatrist, assessed the respondent's risk as high due to his entrenched pattern of offending, poor self-awareness, and lack of insight. The respondent's history of contraventions and negative attitude towards intervention further supported the applicant's contention. The Court found that the respondent had not discharged the onus to demonstrate that the adequate protection of the community could be ensured by a Supervision Order.

Consequently, the Court rescinded the Interim Detention Order and the Supervision Order made on 2 November 2015. The respondent was ordered to be detained in custody for an indefinite term for control, care, and treatment under the DPSO Act.

Orders

Orders of the court

The order of the Court is that:

1. The Interim Detention Order made on 24 January 2020 is rescinded.

2. The Supervision Order made on 2 November 2015 is rescinded.

3. The respondent be detained in custody for an indefinite term for control, care and treatment under the DPSO Act.

Background

Background to the litigation

The key issue for determination on this application is whether a Continuing Detention Order under s 22(2) is required to ensure “the adequate protection of the community” or, alternatively, whether a Supervision Order under s 22(7) is sufficient.Background Byrne SJA, in January 2014, in making the order that the respondent be detained in custody under a Continuing Detention Order observed as follows:“The respondent accepts that the evidence provides a satisfactory basis for a conclusion that he is such a ‘serious danger …’. Moreover, he does not oppose the making of an order for his continued detention in custody. Essentially, the reason for that reasonable position is related to the evidence of the three psychiatrists. All are of the view that the respondent ought to complete a high-intensity sexual offending program. To enable him to do so, it is necessary that he remain in custody. Such a course runs for approximately nine months. The next opportunity for him to participate in it is in May 2014. The concession concerning the serious danger to the community which he represents, and that he ought to be retained in custody to enable to him to participate in the high-intensity program, is amply justified. The respondent is a 43 year old man. His offending began many years ago with a quite young male. His more recent offending involves sexual offending in connection with males in their early to mid teens. The respondent has participated in a medium-intensity program, not with great success as a result. But he is willing to participate in the high-intensity program. The evidence of the psychiatrists indicates that appropriate participation in it is likely to produce results which would mean that the degree of risk that he would present of committing further sexual offences against children might be reduced to such an extent that his release, subject to the stringent conditions of a supervision order, may be adequate to protect the community. The concession that his continued detention is custody is required is, as I have said, amply justified.”[3][3]Transcript of proceeding, Attorney-General (Qld) v F (QSC, Byrne SJA, 13 January 2014) at [2]. On 2 November 2015, Mullins J undertook the annual review of the Continuing Detention Order and ordered that the respondent be released to the community under a Supervision Order with a duration of 10 years. In making this order, her Honour observed:“[The respondent] has a criminal history for sexual offences over the period 1993 to 2012. There was a period of a number of years when there were no entries in his history. His last sexual offence was committed against a 15 year old boy. That is consistent with the opinion of Dr Beech and the opinion of Dr Sundin that [the respondent’s] paraphilia is an attraction to young peripubescent or pubescent males. In the past, his victims had aged generally between 12 and 16 years. The exit report from the sexual offenders program shows that [the respondent] did have some difficulties in engaging with it, but it has enabled him to develop some insight about himself, but more importantly it has alerted Corrective Services as to the areas where [the respondent] is most likely to be at risk of offending and the proposed supervision order addresses those risk factors. One of the risk factors is the use of alcohol. The proposed supervision order requires [the respondent] to be completely abstinent from alcohol and illicit substances. Dr Beech is of the opinion that [the respondent] presents a high risk of re-offending, if he were released without supervision, because of the limitations on his insight and self-awareness and that he may be tested, if he finds himself in circumstances that are stressful for him. Dr Beech considered that, although there were only limited gains made as a result of the sex offenders treatment program, [the respondent] at least now has some idea about how to manage the risk of reoffending in the community and recognises the situations he has to avoid in order to avoid further offending. Dr Beech has expressed the opinion that on a supervision order [the respondent’s] risk of re-offending would be significantly reduced to moderate or below. Dr Sundin considered that [the respondent] was at a moderate risk of re-offending in the absence of a supervision order. Dr Sundin agrees with the opinion expressed by Dr Beech that any supervision order would need to run for 10 years in order to ensure the protection of the community, but also to facilitate the support that [the respondent] will require in order to modify his past offending behaviour.…The evidence of both Drs Beech and Sundin is acceptable and cogent and satisfies me to the high degree of probability that is required under the Act that [the respondent’s] risk of sexual re-offending, which is estimated at somewhere between moderate and high, unless appropriately supervised, is an unacceptable risk as contemplated by section 30 subsection (2) of the Act.The applicant appropriately acknowledged, on the basis of the psychiatric evidence, that the weight of the expert evidence favours [the respondent’s] release, subject to a supervision order with appropriate conditions. I therefore am prepared to make the supervision order on the terms of the draft that has now been amended by me and will be initialled and placed with the file. That supervision order is for a period of 10 years and will provide for [the respondent] to be released from custody on 3 November 2015.”[4][4]Attorney-General for the State of Queensland v F [2015] QSC 316 at pp 3-5.Statutory provisions

Evidence

Evidence Before The Court

As a result of this finding, the onus of proof passes to the respondent to satisfy the Court that the existing Supervision Order, despite the contravention, provides adequate protection to the community.Psychiatric evidenceDr Sundin Dr Josephine Sundin, consultant psychiatrist, prepared a report dated 8 May 2021 for the purposes of these contravention proceedings. Dr Sundin interviewed the respondent on 8 April 2021 via video-link and had also prepared an earlier report for the Division 3 hearing in 2013 and a report in 2015 for the respondent’s annual review. Dr Sundin’s diagnosis of the respondent is as follows:(a)Paraphilia not Otherwise Specified (Hebephilia, homosexual, non-exclusive);(b)Major Depressive Disorder (mild severity, now resolved); and(c)Attention Deficit Hyperactivity Disorder. Dr Sundin also undertook an assessment of the respondent and the actuarial scores are as follows:(a)Static-99R: the respondent scored eight, placing him at the “high” risk category;(b)Hare Psychopathy Checklist (PCLR-20): the respondent’s score is not elevated;(c)Sexual Violence Risk scale (SVR-20): the respondent’s risk of reoffending is high and the following items are present:“1. Sexual deviation;2. Victim of child abuse - sexually molested by a family friend at the age of 10;3. Previous substance use problems;4. Relationship problems;5. Employment problems;6. Past supervision failures;7. High density sex offences previously;8. Extreme minimisation or denial of sex offences;9. Lacks realistic plans;10. Negative attitude towards intervention.”;(d)Risk for Sexual Violence protocol. The following items were present:(i)chronic sexual offending history;(ii)use of psychological coercion;(iii)lack of self-awareness;(iv)problems with stress;(v)problems from child abuse;(vi)sexual deviance; and(vii)problems with intimate relationships. Further, Dr Sundin provided the following clinical summary in respect of the respondent:“The concerning elements of [the respondent’s] history are a function of the many decades of offences and his persistent offending despite sanctions, imprisonment, High Intensity Sexual Offenders Programmes and close supervision under the auspices of a DPSOA supervision order.His pattern of offending appears completely entrenched. He demonstrates little insight, has poor judgment and has very poor self-awareness. At interview he presents as glib, manipulative and made a series of contradictory statements. There is an ongoing pattern of avoidance of responsibility.Despite having completed a High Intensity Sexual Offenders Programme and been the subject of ongoing intense one on one treatment with an experienced forensic psychologist, [the respondent] has offended again whilst in the community whilst on a supervision order. He was convicted of a charge of grooming a child under 16 years with intent to procure engagement in a sexual act with this offence occurring in January 2020. There was an offence paralleling behaviour in 2018 for which [the respondent] was contravened, plead guilty before a Magistrate and for which he was sentenced to a one period of imprisonment wholly suspended.The material from the Integrated Offender Management System records and from Mr Hamilton show clearly that [the respondent] has continued to maintain a negative attitude towards intervention. He is resentful of his supervision order. He has had multiple contraventions whilst in the community. He does not take responsibility for these contraventions; rather he projects responsibility onto unreasonable and unfair management by his HROMU case supervisors and onto what he perceives to the unreasonableness of the supervision order.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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