Attorney-General (Qld) v Guy

Case [2019] QSC 177

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Guy [2019] QSC 177

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
EDWIN ARTHUR GUY

(respondent)

FILE NO/S:

SC No 11336 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2019

JUDGE:

Lyons SJA

ORDER:

1. Pursuant to s 30(3)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), it is ordered that the respondent continue to be subject to the continuing detention order made by Holmes CJ on 27 March 2017.

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 has been subject to a continuing detention order for two years – where the respondent has high care needs – where respondent does not oppose application for continuing detention order –– whether the respondent continues to present a serious danger to the community and should continue to be subject to the continuing detention order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 5, s 8, s 13, s 27, s 30

Attorney-General for the State of Queensland v Francis (2007) 1 Qd R 396, cited
Attorney-General for the State of Queensland v Guy [2017] QSC 105, followed
Attorney-General for the State of Queensland v Guy [2018] QSC 179, cited

COUNSEL:

J Rolls for the applicant

B Heilbronn for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

This application

  1. The Attorney-General for the State of Queensland has applied for a review of the continuing detention of the respondent, Edwin Arthur Guy, pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA).

  2. The respondent has been subject to a continuing detention order under the Act pursuant to an order made by the Chief Justice on 27 March 2017,[1] and by this application the Attorney-General seeks an order under s 30 of the Act that the respondent continue to be subject to a continuing detention order. That Order is not opposed by the respondent.

  3. The continuing detention order was made under s 13, in Division 3 of Part 2 of the DPSOA. Section 5 of the DPSOA provides that the Attorney-General may make application for orders against a “prisoner”. By the joint operation of ss 5, 8 and 13 of the DPSOA, a “prisoner” against whom a s 13 order may be made is one who is serving a period of imprisonment (whether in actual custody or not) for a “serious sexual offence”.[2] The term “serious sexual offence” is pivotal to the scheme of the DPSOA and it is defined as:

    “serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland—

    (a)  involving violence; or

    (b)  against children.”

    [2]The interaction of…

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Details
AGLC
Attorney-General (Qld) v Guy [2019] QSC 177
Case
[2019] QSC 177
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (Qld) v Guy involved the Queensland Court of Appeal reviewing a continuing detention order for the respondent, Edwin Guy. Guy had a history of severe sexual offences against children, and his case was examined under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The central issue before the court was whether Guy continued to present a serious danger to the community, warranting the continuation of his detention under the Act. This required the court to consider whether adequate protection of the community could be ensured if Guy were to be released on a supervision order.

The court considered the reports from two psychiatrists, Dr Michael Beech and Dr Ken Arthur, who had evaluated Guy. Notably, Guy refused to be interviewed by either psychiatrist, which limited the depth of their evaluations. Despite this, the court examined Guy's extensive criminal history, his intellectual disadvantages, and his high-risk profile as a sexual offender. Given Guy's severe and persistent nature of sexual offences, the court found that he continued to pose a serious danger to the community. This conclusion was based on his history of offending, his refusal to cooperate with psychiatric evaluations, and his ongoing risk factors.

After thorough consideration, the court determined that adequate protection of the community could not be ensured by Guy's release on a supervision order. Consequently, the court affirmed the continuing detention order for Guy, ensuring he remains subject to this order. This decision was made in accordance with the statutory framework, which mandates that a continuing detention order be affirmed if justified by acceptable cogent evidence to a high degree of probability.

Orders

Orders of the court

1. Pursuant to s 30(3)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), it is ordered that the respondent continue to be subject to the continuing detention order made by Holmes CJ on 27 March 2017.

Background

Background to the litigation

Both psychiatrists saw the respondent at the Townsville Correctional Centre. The respondent made it very clear to both psychiatrists that he did not want to be interviewed, and whilst he was aware that it was a report for the court in relation to his continuing detention, he stated that he did not wish to proceed with the interviews. Accordingly, both psychiatrists have prepared their reports on the basis of the material provided to them, and neither were able to explore with the respondent his current circumstances or plans. Factual background The respondent’s history has been set out previously in the decisions of both the Chief Justice and Justice Davis and is conveniently summarised by Dr Beech in his report as follows:[7][7] Affidavit of Michael Joseph Beech sworn 4 July 2019, Exhibit MJB-2, page 2, ll 69-114.“Edwin Guy is a 66 year old single, widowed man who has been in custody since 2008. He is intellectually disadvantaged and suffers from Parkinson’s disease. In 1998 he was convicted of the charges of: · Rape (17 charges);· Indecent assault with circumstances of aggravation;· Maintaining a sexual relationship with a child;· Indecent dealing with a child (97 charges);· Wilfully expose a child under 12 to an indecent video (2 charges;· Wilfully expose a child under 16 to an indecent act;· Unlawful assault;· Procure a child under 16 to commit an indecent act;· Indecent assault (2 charges);· Procure persons to commit an act of gross indecency by threats;· Procure a person without their consent to commit an act of gross indecency.He was sentenced to ten years in custody with the recommendation that he receive treatment. As noted in my 2016 report, 33 of the charges related to his step-daughter and the remainder to her friend. The offences started when his step-daughter was nine years and continued for seven years. They involved multiple accounts of rape and indecent assault. The girl’s friend was 16 years old at the time of the indecent assaults. Mr Guy was released on parole in 2007. He was subject to ANCOR reporting conditions at the time and breached them by moving to Caboolture. He resumed contact with his 27 year old daughter. She has low intelligence and profound cognitive deficits and suffered from depression and post-traumatic stress disorder. In 2008, she told police that Mr Guy indecently touched her and had sex with her on two occasions. This was five months after his release from parole, but while he was subject to the ANCOR conditions. When police interviewed Mr Guy, he said he could not recall the incident, but spoke of a separate incident that had occurred. He was convicted in 2009 of two counts of incest and two charges of failing to comply with reporting conditions. Mr Guy’s antecedent history involved learning problems (he was enrolled in an opportunity school until he was 16 years old); juvenile delinquency (break and enter and stealing offences); childhood epilepsy (seizures ceased when he was 20 years old); and an incident of sexual abuse when he was six years old. He worked for four years after he left school and was then placed on an invalid pension for conditions that included the effects from a congenital brain condition. Over the years, his relationships and accommodation have been unstable. He has been generally socially isolated. He formed a relationship with EJ, an older woman, when he was 27 years old; she has four children to a previous relationship. He separated from her, and formed a relationship with her daughter, SD. The 1998 offences involved SD’s daughter. Mr Guy told me in 2016 that he had three children to EJ and five or six children to SD.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As Davis J set out in his decision in relation to a review of the respondent’s continuing detention order in 2018, s 30 in many ways mirrors s 13, and incorporates concepts of “serious danger to the community in the absence of a Division 3 order” and “adequate protection of the community”. Section 30 also provides that the continuing detention order may only be affirmed if it justified by acceptable cogent evidence to a high degree of probability. He considered that there are really three questions that the Court must turn its mind to:[3]1.Firstly, the Court must consider whether the respondent is “a serious danger to the community in the absence of a Division 3 order”;[4]2.If the answer to that question is in the affirmative, then consideration must be given to whether “adequate protection of the community” can be ensured by release of the respondent on a supervision order;[5]3.If the answer to that question is in the negative, then generally (subject to any discretion to make no order) a continuing detention order should be made.[6]Should the Court affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 order?[3] Attorney-General for the State of Queensland v Guy [2018] QSC 179 at [10].[4] Section 30(1) and (2).[5] Section 30(3).[6] Section 30(4). The respondent has been examined by two psychiatrists, Dr Michael Beech and Dr Ken Arthur. Dr Beech’s report is dated 30 June 2019, and Dr Arthur’s report is dated 19 June 2019. Both psychiatrists saw the respondent at the Townsville Correctional Centre. The respondent made it very clear to both psychiatrists that he did not want to be interviewed, and whilst he was aware that it was a report for the court in relation to his continuing detention, he stated that he did not wish to proceed with the interviews. Accordingly, both psychiatrists have prepared their reports on the basis of the material provided to them, and neither were able to explore with the respondent his current circumstances or plans. Factual background The respondent’s history has been set out previously in the decisions of both the Chief Justice and Justice Davis and is conveniently summarised by Dr Beech in his report as follows:[7][7] Affidavit of Michael Joseph Beech sworn 4 July 2019, Exhibit MJB-2, page 2, ll 69-114.“Edwin Guy is a 66 year old single, widowed man who has been in custody since 2008. He is intellectually disadvantaged and suffers from Parkinson’s disease. In 1998 he was convicted of the charges of: · Rape (17 charges);· Indecent assault with circumstances of aggravation;· Maintaining a sexual relationship with a child;· Indecent dealing with a child (97 charges);· Wilfully expose a child under 12 to an indecent video (2 charges;· Wilfully expose a child under 16 to an indecent act;· Unlawful assault;· Procure a child under 16 to commit an indecent act;· Indecent assault (2 charges);· Procure persons to commit an act of gross indecency by threats;· Procure a person without their consent to commit an act of gross indecency.He was sentenced to ten years in custody with the recommendation that he receive treatment. As noted in my 2016 report, 33 of the charges related to his step-daughter and the remainder to her friend. The offences started when his step-daughter was nine years and continued for seven years. They involved multiple accounts of rape and indecent assault. The girl’s friend was 16 years old at the time of the indecent assaults. Mr Guy was released on parole in 2007. He was subject to ANCOR reporting conditions at the time and breached them by moving to Caboolture. He resumed contact with his 27 year old daughter. She has low intelligence and profound cognitive deficits and suffered from depression and post-traumatic stress disorder. In 2008, she told police that Mr Guy indecently touched her and had sex with her on two occasions. This was five months after his release from parole, but while he was subject to the ANCOR conditions. When police interviewed Mr Guy, he said he could not recall the incident, but spoke of a separate incident that had occurred. He was convicted in 2009 of two counts of incest and two charges of failing to comply with reporting conditions. Mr Guy’s antecedent history involved learning problems (he was enrolled in an opportunity school until he was 16 years old); juvenile delinquency (break and enter and stealing offences); childhood epilepsy (seizures ceased when he was 20 years old); and an incident of sexual abuse when he was six years old. He worked for four years after he left school and was then placed on an invalid pension for conditions that included the effects from a congenital brain condition. Over the years, his relationships and accommodation have been unstable. He has been generally socially isolated. He formed a relationship with EJ, an older woman, when he was 27 years old; she has four children to a previous relationship. He separated from her, and formed a relationship with her daughter, SD. The 1998 offences involved SD’s daughter. Mr Guy told me in 2016 that he had three children to EJ and five or six children to SD.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.