Attorney-General (Qld) v Guy

Case [2018] QSC 179

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Guy [2018] QSC 179

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
EDWIN ARTHUR GUY

(respondent)

FILE NO:

SC No 11336 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

9 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2018

JUDGE:

Davis J

ORDER:

1. Pursuant to s 30(3)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), 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 one year – where psychiatrists giving evidence for the purposes of a yearly review hold the view that the respondent presents a similar risk of committing a serious sexual offence – where the respondent has high care needs – 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 30

Attorney-General for the State of Queensland v Fisher [2018] QSC 74, cited
Attorney-General for the State of Queensland v Guy [2017] QSC 105, followed

Attorney-General for the State of Queensland v Newman [2018] QSC 156, cited

COUNSEL:

J Rolls for the applicant

K Prskalo for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

  1. The respondent is subject to a continuing detention order under s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSOA) made by Holmes CJ on 27 March 2017.[1]  As required by Part 3 of the DPSOA, the Attorney-General applies for review of that order.

  2. An order is sought by the Attorney-General under s 30 of the DPSOA that the respondent continue to be subject to the continuing detention order. That course is not opposed by the respondent, but ultimately the discretion to make orders under s 30 vests in the Court.

    Statutory scheme

  3. The continuing detention order was made under s 13, contained 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]

    [2]     The interaction of the different definitions of “prisoner” is explained in Attorney-General for the State of Queensland v Newman [2018] QSC 156 at [10]–[23].

  4. There is no doubt that the respondent is such a prisoner, but the term “serious…

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AGLC
Attorney-General (Qld) v Guy [2018] QSC 179
Case
[2018] QSC 179
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (Qld) v Guy involved a dispute over the application of a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The respondent, Guy, had previously been subject to such an order and was under review for its continuation. The primary legal issue before the court was whether Guy continued to present a serious danger to the community, warranting the continuation of the detention order. This determination hinged on the assessment of psychiatric evaluations, the risk of re-offending, and the availability of alternative accommodation that could manage Guy's high care needs while also protecting the community.

The court considered the evidence provided by three psychiatrists, Dr Beech, Dr Grant, and Dr Arthur, who all assessed Guy as being at a significant risk of committing a serious sexual offence. Their assessments ranged from high to moderately high risk. The court also took into account the impulsive nature of Guy's potential re-offending and his lack of insight into his behaviour. Additionally, due to Guy's low intelligence, Parkinson’s disease, and other medical conditions, any alternative to prison would require a high level of support, which was not available outside of a secure facility. The court concluded that without the continuing detention order, there was no suitable accommodation that could provide the necessary care and security to protect the community.

In light of these findings, the court upheld the continuing detention order, acknowledging the troubling reality that individuals in Guy's situation must be imprisoned due to the lack of appropriate supported accommodation. The Chief Justice expressed a hope that the state would develop such facilities in the future to better manage and protect both the offenders and the community.

The order of the court was that Guy continue to be subject to the continuing detention order made by Holmes CJ on 27 March 2017, pursuant to s 30(3)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

In making the continuing detention order the Chief Justice considered the following matters:1.The evidence of three psychiatrists, Dr Beech, Dr Grant and Dr Arthur who all assessed the respondent as being of above average risk of committing a serious sexual offence; Dr Beech considered the risk “high”, Dr Grant as “above average” and Dr Arthur as “moderately high”;2.The risk of re-offending was identified to be impulsive sexual offending with the risk exacerbated by a lack of insight by the respondent into his offending behaviour;3.Due to the respondent’s low intelligence and the fact that he was suffering from Parkinson’s disease and other medical conditions, any alternative accommodation to prison would have to offer a high level of support to him. His risk could not be managed in a nursing home and there were no alternative facilities;4.In the absence of any accommodation which would provide care and cope with the risk of the respondent committing a serious sexual offence, only continuing detention provided adequate protection of the community.The evidence before me Both Dr Grant and Dr Arthur interviewed the respondent for the purposes of the review under Part 3 of DPSOA and prepared reports which were before me. Dr Grant opined that the respondent represented a moderate or above average risk of sexually re-offending if released into the community. Dr Grant thought that there had been little change in the risk which the respondent posed in late 2016 when Dr Grant assessed him for the purposes of the initial application under s 13. Dr Grant thought that the respondent was “clearly institutionalised” and may actually deliberately re-offend in order to return to custody. Importantly, Dr Grant thought that any release into the community would be problematic given the respondent’s need for care. Dr Grant opined:“Mr Guy’s physical condition is a major factor in terms of suitable placement. He is not able to care for himself and would not be able to live in any precinct accommodation. He would, in effect, require a nursing home style of accommodation and that would need to be an institution where he had contact only with male residents and male carers. The barriers to his satisfactory placement in the community are therefore very significant.” Dr Arthur expressed the view that the respondent’s risk profile had not changed over the last 18 months. He thought the respondent’s risk of sexual offending was in the category of moderate to high. Dr Arthur also thought that if the respondent was released but was having difficulties coping in the community it was “not inconceivable” that the respondent may re-offend with an aim to being returned to custody. Dr Arthur, like Dr Grant, recognised that there were problems with finding appropriate accommodation for the respondent if he were to be released from custody. Because of the level of care required, a nursing home-type facility was needed. However, as Dr Arthur observed, a conventional nursing home environment would provide the respondent easy access to victims. Dr Arthur concluded:“Ultimately, prisoner Guy requires placement in a facility which can meet his medical and emotional dependency needs, whilst also restricting victim access.”Conclusions

Decision

Reasons for decision

Dr Arthur, like Dr Grant, recognised that there were problems with finding appropriate accommodation for the respondent if he were to be released from custody. Because of the level of care required, a nursing home-type facility was needed. However, as Dr Arthur observed, a conventional nursing home environment would provide the respondent easy access to victims. Dr Arthur concluded:“Ultimately, prisoner Guy requires placement in a facility which can meet his medical and emotional dependency needs, whilst also restricting victim access.”Conclusions I am satisfied to a high degree of probability upon the evidence before me which I regard as acceptable and cogent that the respondent remains a serious danger to the community in the absence of a Division 3 order. There is no facility outside of prison which can provide the medical care which the respondent requires but at the same time providing the security necessary to ensure adequate protection of the community against the commission by the respondent of serious sexual offences. Therefore, I will order that the respondent continue to be subject to the continuing detention order. When making the continuing detention order, the Chief Justice said this:“It seems to me that a time will come when there are enough offenders in the respondent’s category of age and debility falling within the compass of the Dangerous Prisoners (Sexual Offenders) Act to require the setting up of supported accommodation for them. It is deeply troubling to think that people who could be managed and rendered relatively risk-free with appropriate support and accommodation, must instead, be imprisoned as the only option.”[13][13] At [7]. I respectfully endorse her Honour’s comments. I specifically raised her Honour’s comments with Mr Rolls who appeared for the Attorney-General on the present application. Mr Rolls told me that her Honour’s comments had been brought to the attention of the Attorney-General but that in the respondent’s case particular difficulties arose because of his special needs. The state of affairs is nonetheless deeply troubling, as the Chief Justice observed. THE ORDER OF THE COURT IS THAT:1.Pursuant to s 30(3)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the respondent continue to be subject to the continuing detention order made by Holmes CJ on 27 March 2017.

Ratio Decidendi

Legal Principle Established

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